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SCR.A/57020/2008 2/ 2 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 570 of 2008
==========================================
RAJESH
AMRATLAL PATEL - Petitioner(s)
Versus
STATE
OF GUJARAT - Respondent(s)
==========================================
Appearance
:
MR RC JANI
for Petitioner(s) : 1,
MR KT DAVE, APP for
Respondent(s) : 1,
==========================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 22/07/2008
ORAL
ORDER
Rule.
Learned APP Shri K.T. Dave waives service of notice of rule on
behalf of the respondent State.
2. Shri
Rashmin Jani, learned advocate appearing for the petitioner submits
that while rejecting the application under Section 438 of the Code of
Criminal Procedure, certain directions have been given to the
Investigating Officer to lodge a criminal complaint under Section
174A of the Indian Penal Code and to submit the report before the
learned Additional Sessions Judge, Court No.17, Ahmedabad which are
without jurisdiction and amount to curtailing the liberty of the
petitioner to invoke his legal right to challenge the warrant
proceedings.
3. Shri
K.T. Dave, learned APP is unable to dispute the above proposition.
4. Considering
the facts and circumstances of the case, while rejecting the
application for bail under Section 438 of the Code of Criminal
Procedure, restrictions put forth by the learned Additional Sessions
Judge and directions given to the Investigating Officer to lodge a
complaint under Section 174A of the Indian Penal Code is beyond the
purview of a Judge exercising power under Section 438.
5. Considering
the above aspects, the impugned order, to the extent it directs the
Investigating Officer to file a case against the petitioner under
Section 174A of the Indian Penal Code, is quashed and set aside. The
petition succeeds to the aforesaid extent. Rule made absolute to the
aforesaid extent.
(
Anant S. Dave, J. )
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