ORDER
B.J. Shethna, J.
1. Manilal Ganeshbhai Patel filed a complaint before the learned J.M.F.C., Mehsana against 7 accused persons for the offences punishable Under Sections 302, 201, 120-B and 114, IPC. It is alleged that on 2-9-88 Puriben, wife of accused Vishnubhai was burnt by the accused. The Id. Magistrate by his order dt. 12-9-88 ordered to hold inquiry Under Section 202 of. Cr. P.C. After recording necessary evidence, the Id. Magistrate found a primasfacie case against the accused, therefore, ordered to issue non-bailable warrant against the accused for the offences punishable Under Sections 302, 498A and 34, IPC.
2. All the seven accused have challenged the impugned order passed by the Id. Magistrate by filing Cri. Revn. Application No. 67/ 91 which was rejected by the learned Addl. Sessions Judge, Mehsana by his impugned judgment and order dt. 28-8-91. The above order passed by the Id. Magistrate confirmed in Cri Revn. Appln. by the Id. Addl. Sessions Judge has been challenged in these 3 Special Cri. Applications filed by seven accused persons which are filed under Articles 226 and 21 of the Constitution of India as well as Under Section 482, Cr. P.C.
3. The first question which is required to be considered is, whether these petitions filed under Article 226 of the Constitution of India would be maintainable or not? Once the Revision Application is rejected, there is a specific bar for second Revision Application and therefore, only with a view to circumvent the same, these Special Cri. Applications have been filed under Article 226 of the Constitution of India and therefore, it cannot be entertained. In the same manner, this Court also cannot exercise its powers Under Section 482, Cr. P.C. Accordingly all these petitions are required to be rejected only on this ground as it is not, maintainable.
4. However, even if Special Cri. Applications would be maintainable then, even on merits also there is no substance in these petitions therefore, the same are required to be rejected.
5. Mr. G. N. Desai, Id. Counsel argued the common points in all these 3 petitions and submitted that when the investigation made by the police was in progress, Id. Magistrate ought to have stayed the inquiry pending before him and only after calling for the record of the police, the Id. Magistrate could have proceeded with the inquiry, but, in the instant case, the Id. Magistrate has proceeded with the inquiry though investigation by the police was in progress. Therefore, the impugned order passed by the Id. Magistrate for issuing non-bailable warrant against the petitioners is bad in law and requires to be quashed and set aside. In support of his submission, he has relied upon the judgment of this Court reported in the case of Shantibhai Somabhai Raval v. Madhukanta T. Shukla reported in 1982 (2) 23 GLR 711 : 1983 Cri LJ 62. Mr. Desai has also placed reliance upon the judgment of the Rajasthan High Court in the case of Vishnu Datt v. The State of Rajasthan, the xerox copy of which has been produced before me.
6. It is required to be noted that before issuing non-bailable warrant the Id. Magistrate has called for police papers by a Yadi and has also seen and perused police papers. The police had already submitted its report to the executive magistrate regarding the incident as of accidental death. The Id. Magistrate did consider the post mortem notes and inquest panchnama and there is sufficient evidence to hold that there is a prima facie case against the accused Under Sections 302, 498A and 34, IPC. Therefore, he has issued non-bailable warrant against the accused after holding proper inquiry.
7. The aforesaid contention raised by Mr. Desai regarding Section 210, Cr. P.C. was also raised before the Id. Addl. Sessions Judge. Before the Id. Addl. Sessions Judge the judgment of this Court in the case of Shantibhai Somabhai (supra) was cited. The Id. Addl. Sessions Judge completely agreed with the said decision of this Court and the Id. Addl. Sessions Judge has also held that reading provision of Section 210, Cr. P.C., the Court is bound to stay the inquiry. He also found that the report from the police on the complaint being filed and if the court feels that the report of the police is not proper, then the Court may initiate its own proceedings and may come to a different conclusion or it may agree with the report of the police. If the court does not agree with the report of the police then, by showing reasons for the same, the Court, can still, has got a power to issue non-bailable warrant against the accused if the offence Under Section 302, IPC is committed.
It was clearly found by the Id. Addl. Sessions Judge that from looking at the record it appears that the police papers were produced along with the report of the police. The police has stated in its report that it is a case of ‘Accidental Death’, therefore, inquiry may be closed. The Id. Addl. Sessions Judge also found that looking to the police papers it appears that an application was submitted by the Id. advocate for the complainant and a request was made to call for the police papers, on which the order was passed by the Id. Magistrate and thereafter, only the police has submitted its report and the papers. In the report of the police, it has been stated that from recording the statement of the concerned persons, nothing has been found. Thus, the police officer of Langnaj Police Station completed the inquiry and submitted his report and opined that no offence has been committed in this case. Along with his report, copies of the statements recorded by him were also produced and after considering all the relevant papers and statements, the Id. Magistrate has given his own decision for which he has assigned reasons. Therefore, the Id. Addl. Sessions Judge has found that no breach of Section 210, Cr. P.C. has been committed.
8. Therefore, under the aforesaid circumstances in my view, the aforesaid judgment cited by Mr. Desai are not at all applicable to the facts of the present case. Not only that, in this case the police had already completed inquiry and had already submitted its report on ‘Accidental Death’. Thereafter, inquiry held by the Id. Magistrate was over and on inquiry the Id. Magistrate found that there is sufficient evidence and a prima facie case against the accused Under Sections 302, 498A and 34, IPC therefore, he has issued process by issuing non-bailable warrant against the accused. Therefore, if the investigation by the police was in progress and the Id. Magistrate was proceeding with the inquiry and at that point of time if the accused had prayed for stay of the proceeding pending before the Id. Magistrate, then the court could have interfered with. But once the investigation by the police was over and though the inquiry was over and as the Id. Magistrate had issued non-bailable warrant against the accused then in that case, the above judgment of this court will not apply. Thus, there is no substance in these petitions, therefore, they are required to be rejected and they are rejected in limine.
R & P to be sent down forth with.
9. Before parting, I must observe that an unfortunate incident took place on 2-9-88 wherein one young bride lost her life. She was burnt alive by the accused persons, which is the allegation in the complaint. The police somehow submitted its report regarding the case which is prima facie found not to be accidental death by the Id. Magistrate. The allegation made in the complaint is that one Ranchhodbhai Patel who is the relative of the accused in the Addl. D.S.O. at Mehsana who was summoned by the accused and the accused are trying to destroy the evidence and are trying to see that the case of murder is converted into a case of suicide. Before lodging the complaint before the Id. Magistrate an application was made to the higher officers to inquire into the complaint lodged by the complainant before the police about the offence but no action was taken at any level, therefore, at last, the complainant was constrained to file a direct complaint before the Id. Magistrate on 2-9-88. In the inquiry pending before the Id. Magistrate, prima facie it has been revealed that Puriben was burnt alive only because of dowry.
Though the Id. Magistrate has ordered to issue non-bailable warrant on 18-3-91, the same has not been yet executed and the accused are free only because the Id. Addl. Sessions Judge while entertaining Cri. Revn. application No. 67/91 filed by the accused, stayed the implementation of the order of warrant issued by the Id. Magistrate. However, said stay order is vacated by the Id. Addl. Sessions Judge on 28-9-91, the date on which he dismissed the Revision Application, but still they are not attorstated.
10. Under the circumstances, the police is directed to execute the non-bailable warrant against the petitioners-accused in these Spl. Cri. Applications forthwith.
Mr. K. C. Shah, A.P.P. shall inform the concerned police officers forthwith.