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SCR.A/2543/2010 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 2543 of 2010
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 ?
=========================================
FARIDABANU
W/O MUNIRUDDIN VAJIRUDDIN MALEK - Applicant(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================
Appearance
:
MR HRIDAY
BUCH for
Applicant(s) : 1,
MR KP RAWAL, ADDL. PUBLIC PROSECUTOR for
Respondent(s) : 1,
None for Respondent(s) : 2 -
3.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 22/12/2010
ORAL
JUDGMENT
1. Present
Special Criminal Application under Article 227 of the Constitution of
India read with Section 482 of the Code of Criminal Procedure has
been preferred by the petitioner – original complainant to
quash and set aside the impugned order dated 01/11/2010 passed by the
learned JMFC, Borsad below application dated 01/11/2010, by which the
learned Magistrate has rejected the said application submitted by the
petitioner to add offence under Section 307 of the Indian Penal Code
in complaint/FIR being C.R. No.I-198/2010 registered with Borsad Town
Police Station. In the alternative it is prayed to direct the
respondents to ensure proper and effective investigation in
connection with the FIR registered as C.R. No.I-198/2010 with Borsad
Town Police Station after addition of the offence under Section 307
of the IPC.
2. Shri
Hriday Buch, learned advocate appearing on behalf of the petitioner
has vehemently submitted that infact looking to the injury and weapon
used on the vital part of the body of the victim, it is a clear case
of Section 307 of IPC and still the investigating officer has not
addedthe offence under Section 307 of the IPC against the accused
persons of complaint/FIR being C.R. No.I-198/2010. It is submitted
that looking to the medical/injury certificate when an application
was submitted to the learned Magistrate to add offence under Section
307 of IPC , the learned Magistrate ought to have granted the same.
It is further submitted that even the concerned investigating officer
was required to add offence under Section 307 of the IPC and is
required to investigate into the offence under Section 307 of the IPC
also.
3. Having
heard learned advocates appearing on behalf of the respective parties
at length, it appears that a complaint being C.R. No.I-198/2010 has
been lodged with the Borsad Town Police Station for the offences
punishable under Sections 143, 147, 148, 149, 324, 337, 504, 506(2)
of Indian Penal Code. However, it is the case on behalf of the
petitioner – original complainant that infact looking to the
injury and the weapon used, it is a case of Section 307 of IPC and
therefore, an application was submitted before the learned Magistrate
to add the offence under Section 307 of the IPC, which is rightly
rejected by the learned JMFC at this stage. Unless and until an
appropriate report is submitted by the concerned investigating
officer, the learned Magistrate at this stage has no jurisdiction to
pass any order to add a particular offence. Hence, no illegality has
been committed by the learned Magistrate in dismissing the said
application at this stage. However, on investigation it is always
open for the investigating officer and having been satisfied that
during the investigation, it is found that an offence punishable
under Section 307 of IPC also is committed, in that case, it is
always open for the concerned investigating officer to add the
offence under Section 307 of the IPC and make a report to the
concerned learned Magistrate which will form part of the FIR.
However, it is for the concerned investigating officer to make such a
report.
Considering
the above, Shri Hriday Buch, learned advocate appearing on behalf of
the petitioner has submitted that in that case petitioner will
approach the concerned investigating officer/DSP requesting to add
the offence under Section 307 of the IPC and therefore, it is
requested to make suitable observation.
4. In
view of the above, present Special Criminal Application is disposed
of permitting the petitioner to submit an appropriate
representation/application before the concerned investigating officer
as well as to DSP, Anand requesting to add offence under Section 307
and as and when such an application is made, the same may be
considered by concerned investigating officer and DSP in accordance
with law and on merits and if the investigating officer is satisfied,
in that case, he may submit appropriate report to the concerned
Magistrate for adding offence which can be considered as part of the
FIR and the concerned investigating officer to inquire into the same
in accordance with law and on merits. However, the said exercise is
to be completed at the earliest. However, it is made clear that this
Court has not expressed any opinion on merits with respect to the
same and an appropriate case being made out and if the concerned
investigating officer/DSP is satisfied prima facie
that a case under Section 307
of the IPC is made out, it will be open for them to add the said
offence which can be considered as part of the FIR and the concerned
investigating officer to inquire into the same in accordance with law
and on merits.
5. With
this, present Special Criminal Application is disposed of. Direct
service is permitted.
(M.R.
Shah, J.)
*menon
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