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CR.MA/9638/2009 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 9638 of 2009
In
SPECIAL
CRIMINAL APPLICATION No. 1958 of 2007
=========================================
ASHWINKUMR
CHANDULAL SHAH - Applicant(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================
Appearance
:
MR ARPIT A
KAPADIA for
Applicant(s) : 1,
PUBLIC PROSECUTOR for Respondent(s) : 1,
HL
PATEL ADVOCATES for Respondent(s) : 2 -
3.
=========================================
CORAM
:
HONOURABLE
MS. JUSTICE HARSHA DEVANI
Date
: 22/10/2010
ORAL
ORDER
1. By
this application, the applicant has prayed for the following
reliefs:-
YOUR
LORDSHIPS may be pleased to admit and allow this petition;
YOUR
LORDSHIPS may be pleased to issue appropriate order or directions,
directing the investigating authority to complete the further
investigation under Sec.173(8) of Cr.P.C. in connection with FIR
bearing C.R. No.I-75/2004 registered with Godhra Town Police
Station; by transferring the further investigation to any
independent agency like CBI, CID Crime or any other superior officer
not below the rank of DSP; as notwithstanding the specific direction
issued by this Hon’ble Court (Coram : Hon’ble Ms. Justice H.N.
Devani) vide order dated 05.02.2008 rendered in Special Criminal
Application No.1958 of 2007 to conduct the further investigation
u/s.173(8) of Cr.P.C. within a period of two months, the
investigating authority has not laid the report.
Pending
the admission, hearing and final disposal of this petition, YOUR
LORDSHIPS may be pleased to direct an inquiry by superior officer
not below the rank of DSP regarding the failure of direction issued
by this Hon’ble Court in Special Criminal Application No.1958 of
2007, in the interest of justice;
YOUR
LORDSHIPS may be pleased to grant such other and further relief(s),
as may be deemed fit and proper by this Hon’ble Court, in the
interest of justice.
2. The
facts of the case stated briefly are that vide order dated 05th
February, 2008 made in Special Criminal Application No.1958 of 2007,
this Court had allowed the petition by quashing the order made by the
learned Chief Judicial Magistrate which was subject matter of
challenge before the Court and had directed the Investigating Officer
to conduct further investigation under section 173(8) of the Code of
Criminal Procedure, 1973 only qua the request made by the petitioner,
namely to inquire as to who had signed the notice under section
135(D) of the Bombay Land Revenue Code, by posing as the petitioner
and arraign such person as an accused. It was further directed that
the aforesaid exercise shall be carried out within a period of two
months from the said date. It was also made clear that the time
limit would not be extended in any
event.
3. Subsequent
thereto, the respondent no.1 – State of Gujarat preferred an
application seeking extension of time to complete the investigation
which came to be rejected vide order dated 14th
October, 2008.
4. The
grievance voiced in the present application is that despite the
aforesaid directions issued by this Court, the Investigating Officer
has not concluded the investigation within the time limit stipulated
by the Court and that now the investigating agency was putting forth
an excuse that the time during which the further investigation was
contemplated to be done was over and, therefore, no further
investigation could be carried out. It is further alleged that the
investigating authority has acted in a perfunctory manner and has
allowed the time to pass and now it is sought to be contended that
once the time limit stipulated by this Court is over, they cannot
carry out investigation. It is in the background of the aforesaid
facts that the applicant has moved the present application seeking
the reliefs noted hereinabove.
5. This
Court has heard learned advocates for the respective parties.
6. Vide
order dated 26th March, 2010, this Court had passed an
order in the following terms:-
“1. Mr.
Maulik Nanavati, learned Additional Public Prosecutor states that
further investigation is in in progress.
2.
Mr. Ashim Pandya, learned advocate for the respondent No.2 states
that in view of the time limit stipulated by this Court in its
earlier order, it is not permissible for the investigating agency to
carry out further investigation.
3.
Carrying out further investigation is the sole prerogative of the
investigating agency. Hence, the said contention does not merit
acceptance.
The
matter stands adjourned to 30th April 2010.”
7. From
the facts noted hereinabove, it is apparent that the main grievance
ventilated in the present application is that despite the direction
issued by this Court, the investigation has not been completed within
the specified time limit and that the investigating agency is now
taking a stand that in the light of the fact that the time limit
stipulated by the Court has expired, no further investigation can be
carried out. However, as recorded in the order dated 26th
March, 2010, the learned Additional Public Prosecutor has stated that
further investigation is in progress. In the circumstances, the
apprehension voiced by the applicant that in the light of the fact
that the time limit stipulated by the Court for carrying out further
investigation has elapsed, no further investigation would be carried
out, would no longer survive. Insofar as the other prayer for
transferring further investigation to any independent agency like
CBI, CID Crime or any other superior officer not below the rank of
DSP is concerned, the same is beyond the scope of an application of
this nature, and as such cannot be entertained.
8. In
the light of the aforesaid, nothing remains to be done in this
application. The same is disposed of accordingly.
(
Harsha Devani, J. )
hki
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