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2005 DIGILAW 435 (GUJ)

PANCHABHAI BECHARBHAI MAKWANA v. STATE OF GUJARAT

2005-06-29

JAYANT PATEL

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JAYANT PATEL, J. ( 1 ) HEARD Mr. Panchabhai Becharbhai Makwana, the petitioner, who is present in the court and Mr. Kogje, Ld. APP for the respondent State and Mr. Barot with Mr. Munshaw for respondent No. 2 and Ms. Raval for the respondent No. 3 and also perused the record and proceedings called for by this court by earlier order. ( 2 ) THE petitioner has preferred this petition challenging the order passed by the Ld. Magistrate of accepting B summary report and its confirmation thereof by the Ld. Extra Assistant Judge and Special Judge whereby the report of the police concluding that the false complaint filed is accepted. However, in the said report, it was prayed by the police to initiate prosecution against the complainant, but the said prayer of the police is not granted by the Ld. Magistrate and the Ld. Extra Asst. Judge and Special Judge has also not interfered with the same and it is under these circumstances the petitioner has preferred the present petition. ( 3 ) THE contention raised by the petitioner is that there was no power with the Police Inspector to investigate into the matter and even as per the provisions of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (hereinafter referred to as "the Act") the investigation is to be carried out by an officer not below the rank of Dy. S. P. It has also been submitted by the petitioner that the investigation is made by the officer who is lower in cadre in comparison to the status of the accused No. 1 who was Dy. Collector at the relevant point of time, and therefore, it can not be said that the investigation is properly carried out. It has also been submitted by the petitioner that there is no past record of any criminal activity of the petitioner and the petitioner is aged 72 years by now and there is no reason to disbelieve the statement given by the petitioner as stated in the complaint. Therefore, it has been submitted that the acceptance of B Summary report made by the police deserves to be rejected and the process deserves to be issued. ( 4 ) ON behalf of the State, Mr. Kogje, Ld. APP has supported the order passed by the Ld. Magistrate. He submitted that earlier, after the acceptance of the report by the Ld. ( 4 ) ON behalf of the State, Mr. Kogje, Ld. APP has supported the order passed by the Ld. Magistrate. He submitted that earlier, after the acceptance of the report by the Ld. Magistrate in revision, it was ordered to hold the inquiry under section 202 of Cr. P. C. However, subsequently, in view of the decision of the Apex Court in the case of Gangula Ashok vs State of Andhra Pradesh reported in 2000 Cri. L. J. Page 819, as the special court could not take cognizance of the offence the matter was ordered to be sent to the Ld. Magistrate for consideration and the Ld. Magistrate has considered all the aspects and has recorded reasons for accepting the report submitted by the police and the report for initiating prosecution against the petitioner is not accepted. Mr. Kogje, Ld. APP has also placed on record the copy of the order, dated 26. 4. 84 passed by the Ld. District Judge, Ahmedabad (Rural) at Narol whereby the petitioner was declared as tout and therefore it was submitted that the aforesaid shows the conduct of the background of the petitioner. It was also submitted that the order of the Ld. Magistrate was considered by the Ld. Sessions Judge of the special court and no interference should be made and therefore it is submitted that this court also may not interfere with the impugned order in exercise of its powers under Article 227 of the Constitution of India. ( 5 ) HAVING considered the above and the perusal of the record shows that the investigation report of B summary is submitted by the Dy. S. P who is also the investigating officer and therefore it can not be said that the officer who has submitted the report after investigation had no authority to investigate into the matter. Merely because the investigating officer while conducting the investigation has taken the assistance of some officer would not vitiate the investigation as having no authority, more particularly, after considering the material, the report is submitted by the officer autrhorised for such purpose, and therefore the said contention of the petitioner can not be accepted. ( 6 ) SIMILARLY, when the investigation is made by the Dy. ( 6 ) SIMILARLY, when the investigation is made by the Dy. S. P who is the authorised officer for such purpose it can not be said that the investigation is not properly made even if he is of the cadre of Dy. S. P lower in rank to the Dy. Collector. As such, the cadre of Dy. S. P and the Dy. Collector, both are same as Class I officer in the State cadre and therefore said contention evn otherwise also can not be accepted. ( 7 ) SO far as the past criminal record is concerned, it may be that the petitioner may not have any past criminal antecedents. But, as per the order passed by the Ld. Dist. Judge it is also admitted by the petitioner in the court that he was declared as tout. However only the explanation given by the petitioner is that it was at the instance of some advocate. Be it as it may, but the same shows that the petitioner is not such an illiterate person who is not aware of the court proceedings and he had activities of working as a tout. ( 8 ) THE perusal of the record and proceedings and the order passed by the Ld. Magistrate shows that as the application of the petitioner and his son for licence of petition writer was not granted by the Deputy Collector, the threat was given of filing of complaint under the Act and thereafter it appears that the complaint is filed. The petitioner during the course of proceedings has also attempted to bring pressure upon the Prant Officer through concerned Minister for the State, Shri Girishchandra Parmar and thereafter also as the licence was not received by the petitioner, it has been found by the Ld. Magistrate that the bogus complaint is filed with malafide intention. Except the petitioner himself and his son the other witnesses have not only not supported the case of the petitioner but have stated otherwise and against the petitioner. Even one Atmaram Bhavanbhai Sonar whose statement was recorded and who also belongs to the same community of the petitioner, has given the statement which shows that the complaint is false. Further, the Ld. Magistrate after considering the records as well as the Ld. Extra Asst. Even one Atmaram Bhavanbhai Sonar whose statement was recorded and who also belongs to the same community of the petitioner, has given the statement which shows that the complaint is false. Further, the Ld. Magistrate after considering the records as well as the Ld. Extra Asst. Judge and Special Judge after considering the record and proceedings have found that the report of B Summary should be accepted. On the question of order passed for holding inquiry under section 202 Cr. P. C the issue is covered by the decision of the Apex Court in the case of Gangula Ashok (supra) and even otherwise also the petitioner has not challenged the said order passed by the Ld. Extra Asst. Judge and Special Judge for sending the matter to the Ld. Magistrate for acceptance of the report or for rejection of the report. No other illegalities in the order are brought to the notice of this court by the petitioner. As such, in view of the report and statements of witnesses, the Ld. Magistrate could have accepted the report for prosecution and in the order of the Ld. Magistrate no reasons are assigned for not granting permission for prosecution. However, as the Ld. Sessions Judge while exercising discretion has concurred with the view of the Ld. Magistrate and as the petitioner is aged about 72 years by now, I find that the order passed by the Ld. Extra Asst. Judge and Special Judge for not permitting the prosecution should not be interfered with. ( 9 ) IN view of the above, it can not be said that the exercise of power and discretion by the Ld. Magistrate and its confirmation thereof by the Ld. Extra Asst. Judge and Special Judge is so perverse or is without jurisdiction which would call for interference by this court in exercise of its powers under Article 226/227 of the Constitution of India. ( 10 ) HENCE, no case is made out for interference and therefore the petition is rejected. Rule is discharged. ( 11 ) R and P be sent back to the trial court. .