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SCR.A/1924/2007 8/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 1924 of 2007
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge?
=========================================================
DEVUBEN
TEJABHAI DEGDA - Applicant(s)
Versus
STATE
OF GUJARAT & 3 - Respondent(s)
=========================================================
Appearance :
MR
MP SHAH for Applicant(s) : 1,MS. KRUTI M SHAH for
Applicant(s) : 1,
MR MAULIK NANAVATI, ADDL. PUBLIC PROSECUTOR for
Respondent(s) : 1,
NOTICE SERVED for Respondent(s) : 2 -
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 14/10/2008
CAV
JUDGMENT
Leave
to amend.
Rule.
Mr.Maulik Nanavati, learned APP waives service of Rule on behalf of
respondents. With the consent of the learned Advocates appearing on
behalf of the respective parties, the petition is taken up for final
hearing today.
2. By
way of this petition under Article 226 of the Constitution of India,
the petitioner has prayed for an appropriate order for lodging FIR
against accused persons in pursuance of the application dated
07.11.2003 and direct CID (Crimes), State of Gujarat to investigate
into the said matter. It is further prayed that till CID(Crimes)
investigates the said FIR with respect to death of son of the
applicant ? Maheshbhai who died in the police lockup at Jetpur City
Police Station and cause of death is consuming poison, stay further
proceedings of Criminal Case No.1039 of 2004 pending in the Court of
learned JMFC, Jetpur in the interest of justice.
3. Few
facts necessary for determination of the present application in
nutshell are as under :
On
17.10.2003, the complainant- Sabir Bavasha Fakir lodged FIR being
C.R.No.II-3213 of 2003 at Jetpur Police Station against the son of
the applicant viz. Mahesh Teja Degda for the offences under sections
323, 504, 506(2) of the IPC and under Section 37(1) and 135 of the
Bombay Police Act. It is the case on behalf of the applicant that in
connection with the said FIR, on 20.10.2003 at about 1.00 p.m. to
2.00 p.m. Police officials namely Raju Dangar, Rajbha @ Rajendrainh,
Sukhubha, Surubha, Ishwarbhai, Najruddin and Mustufa came at the
house of the applicant in police van. They took her son forcibly in
van and he was kept in police lockup at Jetpur City Police Station.
It is further case on behalf of the applicant that at the relevant
time one Khimji Shiva Bharai was the Police Inspector. When said
Mahesbhai- son of the applicant was in custody of Jetpur City Police
Station, on 20.10.2003, he died in police custody as he was given
poison by police personnel. It is the case on behalf of the
applicant that inspite of the fact that said Mahesh son of the
applicant has died in police custody, instead of immediately
informing converted Magistrate to initiate Magisterial Inquiry, with
a view to divert the case, police falsely registered complaint being
C.R.No.I-142 of 2003 against the applicant, her daughter ? Kiraben,
her son Mahesh Teja Degda and one unknown person for the offences
under Sections 309, 120-B, 109, 35 and 114 of the Indian Penal Code
alleging inter-alia that accused hatched conspiracy and with a view
to fit the PI Bharia, Maheshbhai consumed poison when he was in
police custody and said poison was given to Maheshbhai by his mother
Devubhen, his sister ? Kiraben and on unknown lady. Thus death of
son of the applicant was custodial death and with a view to save
their skin, the police had filed false complaint against the
deceased, his mother and sister with highly improbable story that the
deceased committed suicide and poison was given by his mother and
sister when he was in custody and as such considering the fact that
it was a case of custodial death, Magisterial inqury was required to
be conduced and no steps were taken for Magisterial inquiry and/or
informing Magistrate as required under Criminal Procedure Code. That
thereafter, the applicant immediately after the said incident on
07.11.2003 made complaint to DSP ventilating her grief of custodial
death of her son and to lodge FIR against accused persons stating
therein and inspite of that neither the said application is
registered as complaint nor any further investigation for inquiry has
been conducted by the DSP. Looking to the allegations in the said
complaint, the applicant has preferred the present petition under
Article 226 of the Constitution of India for an appropriate order
directing to register complaint on the basis of application dated
07.11.2003 and to direct the CID (Crimes) to investigate and inquire
into the same.
4. Ms.Kruti
Shah, learned Advocate appearing on behalf of the applicant has
vehemently submitted that son of the applicant has died in police
lockup at Jetpur City Police Station and therefore, it is a case of
custodial death. Immediately Police Officials were required to inform
nearest Magistrate and Magisterial inquiry was must. It is submitted
that the manner in which concerned police officers tried to divert
the attention of filing criminal complaint against the applicant,
deceased and his sister, it creates doubt. It is submitted that
allegations and averments in the complaint against the applicant, her
daughter and deceased Maheshbhai are absolutely improbable and same
is with a view to seal illegal acts of police officials because of
whom deceased Mahesh has died in police custody. It is submitted that
the applicant is very poor lady who has lost her son who died in
police lockup and is coming from lower stata of the society. If the
death of her son is not inquired into by the CID(Crimes), real guilty
persons would be escaped and the applicant and her daughter would be
scapegoat. Therefore, it is requested to direct CID (Crimes) to
register the complaint pursuant to the application dated 07.11.2003
with respect to death of son of the applicant and to inquire and
investigate the same.
5. Heard
the learned Advocates appearing on behalf of the respective parties.
6. At
the outset it is required to be noted that deceased Mahesbhai son of
the applicant was in lockup at Jetpur City Police Station who was at
the relevant time under Police Inspector ? Khimji Shiva Bharai. It
is also admitted position that deceased has died in police lock up.
Finally the cause of death is ‘cardiac respiratory failure due to
posing’. It is also to be noted that deceased Maheshbhai has died in
the lock up on 20.10.2003 and inspite of the fact that it was the
case of death in the police lockup and it was custodial death,
nearest Magistrate, Sub-Divisional Magistrate were not informed
immediately. Magisterial inquiry came to be initiated after long
time. It appears from the police papers that on the contrary, the
police registered FIR being C.R.No.I-142 of 2003 against Maheshbhai,
applicant -the mother of the deceased and sister of the deceased for
the offences under Sections Sections 309, 120-B, 109, 35 and 114 of
the Indian Penal Code alleging inter-alia with a view to malign
Police Inspector – Khimji Shiva Bharai, the petitioner and her
daughter brought poison, gave it to Maheshbhai and said Maheshbhai
consumed it and tried to commit suicide with a view to malign and
tarnish the image of said Police Inspector. Immediately thereafter
the petitioner had submitted complaint before the DSP on 07.11.2003
requesting for thorough investigation with respect to death of
Maheshbhai in police lockup and copy of the same was forwarded to
various authorities inclusive of National Scheduled Castes and
Scheduled Tribes Commission, Human Rights Commission, Chief Minister,
State of Gujarat, Home Minister, State of Gujarat etc. Allegations in
the said application / complaint are very serious in nature. The
petitioner is poor lady belonging to Dalit community coming from
lower strata of the society and considering the nature of allegations
in the complaint dated 07.11.2003 and even the complaint filed by the
police officials against the deceased, the petitioner and her
daughter and considering the fact that the deceased has died in the
police lockup by consuming poison and allegations against the police
officials by the petitioner are for offence under Section 302 of the
IPC, this Court is of the opinion that to find out real truth and
culprit, entire case is to be inquired by the CID, Crimes, more
particularly when allegations are against the police officials of
Jetpur City Police Station who were in-charge of the Jetpur City
Police Station at the relevant time. Effort of the Court and
everybody should be to find out real truth and book real culprit
guilty and punish them. Under the circumstances and looking to the
seriousness of the allegations the application / complaint dated
07.11.2003 is to be registered as FIR by CID (Crimes) and same to be
investigated and inquired by the CID (Crimes).
7. It
is to be noted that considering various decisions of the Hon’ble
Supreme Court, this Court would have relegated the petitioner to file
private complaint, however, in view of the fact that another
complaint being C.R.No.I-142 of 2003 is already filed against the
petitioner and her daughter, in the peculiar facts and circumstances
of the case and as it is a case of custodial death of Maheshbhai in
the police lockup, this Court is inclined to direct CID (Crimes), to
register complaint / application dated 07.11.2003 as FIR and to
inquire into the same and till then Criminal Case No.1039 of 2004 is
required to be stayed.
8. For
the reasons stated above, the petition succeeds. CID(Crimes), State
of Gujarat is directed to register application / complaint dated
07.11.2003 (Annexure ? C) to the petition as FIR and further
directed to inquire and investigate into the same more particularly
death of Maheshbhai who has died on 20.10.2003 in police lockup at
Jetpur Police Station and investigate the same at the earliest. Until
then proceedings before the learned JMFC, Jetpur being Criminal Case
No.1039 of 2004 are required to be stayed and accordingly they are
stayed, till appropriate report be submitted by the CID(Crimes) after
investigation as stated above. Rule is made absolute accordingly.
Direct service is permitted.
[M.R.Shah,J.]
satish
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