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2011 DIGILAW 738 (GUJ)

Habibbhai Jahangirbhai Sipahi v. State of Gujarat

2011-11-14

RAJESH H.SHUKLA

body2011
Judgment Rajesh H. Shukla, J.—The present petition has been filed by the petitioner under Articles 226 and 227 of the Constitution of India read with Sections 482 and 173(8) of the Criminal Procedure Code for the prayer that— (b) Quash and set aside the order dated 25/05/2011 in Criminal Revision Application No. 66/2010 passed by the learned City Sessions Court, Court No. 12, Ahmedabad City. (c) Quash and set aside the order below Exh.62 dated 6/01/2010 in Criminal Case No. 3093/2002 passed by the learned Metropolitan Magistrate, Court No. 3, Ahmedabad. (d) Issue a writ of Mandamus or in the nature of Mandamus directing the Senior Police Inspector, Sheharkotda Police Station through Respondent No. 1 to carry out further-investigation in terms of application made by the present Petitioner being Exh.62 in Criminal Case No. 3093/2002 before the learned Metropolitan Magistrate, Court No. 3, Ahmedabad.” 2. Heard learned advocate Shri. Somnath Vatsa for the petitioner. 3. Learned advocate for the petitioner referred to the papers and submitted that the orders passed by both the Courts below are erroneous as they have failed to consider the relevant material. Learned counsel for the petitioner submitted that the City Sessions Court also failed to appreciate that there was no proper investigation and not even the statements were recorded under Section 161 of the Criminal Procedure Code. Therefore, when he has made the allegation, it ought to have been considered and the order passed by the learned Metropolitan Magistrate, Court No. 3, Ahmedabad in Criminal Case No. 3093/2002 below Exh.62 is erroneous and also the order dated 25/05/2011 in Criminal Revision Application No. 66/2010 passed by the learned City Sessions Court, Court No. 12, Ahmedabad City confirming the said order is also erroneous. He has also referred to the statement at page No. 58 as well as subsequent statement and submitted that if the present petition is not entertained by granting the reliefs of further investigation, the petitioner will be prejudiced and there is no other remedy available under the Criminal Procedure Code. He has also submitted that the representation is made on 30.01.2008 which has also not been considered at all by the authorities and, therefore, the application was filed before the Court of Metropolitan Magistrate as well as the revision application before the City Sessions Court which has not been appreciated. He has also submitted that the representation is made on 30.01.2008 which has also not been considered at all by the authorities and, therefore, the application was filed before the Court of Metropolitan Magistrate as well as the revision application before the City Sessions Court which has not been appreciated. Learned advocate for the petitioner, therefore, submitted that further investigation ought to have been ordered in the interest of justice. 4. Learned Special Public Prosecutor Shri. J.M. Panchal for the respondent – State submitted that the incident is occurred in the back of Godhra riots in the year 2002 and the statements of the petitioner has been recorded on 19.05.2002 as well as on 20.07.2002 wherein though he has stated about the incident, he has not given specific name of the persons because there was a mob of thousands of people. Learned Special Public Prosecutor Shri Panchal stated that the petitioner does not know anything or could not identify anything and in fact, the petitioner stated that he had gone to Dhrangadhra to the place of his relative and, thereafter he returned, he knew that his house has been burnt. Learned Special Public Prosecutor Shri. Panchal referred to the statement dated 06.03.2008 and submitted that for the first time in the year 2010, now he wants to implicate the persons stating that the investigation was not proper and he now states the names of particular accused in the charge-sheet. Learned Special Public Prosecutor Shri Panchal submitted that as discussed by the Court of Metropolitan Magistrate in its order that there was a mob of thousand persons and statements were recorded including the statements of nine witnesses and on the basis of the statements of such eye witnesses about 56 persons have been arraigned as accused as shown in the charge-sheet. Learned Special Public Prosecutor Shri Panchal, therefore, submitted that it is not the case that only “A” summary has been made and there is no investigation is made. Learned Special Public Prosecutor Shri Panchal submitted that on the contrary, the witnesses have been examined, 56 accused have been charge-sheeted and now the petitioner prays that the statements of the accused were not recorded during the investigation in the year 2002 in a particular manner and the name of particular accused has not arraigned or shown in the charge-sheet. Learned Special Public Prosecutor Shri Panchal submitted that on the contrary, the witnesses have been examined, 56 accused have been charge-sheeted and now the petitioner prays that the statements of the accused were not recorded during the investigation in the year 2002 in a particular manner and the name of particular accused has not arraigned or shown in the charge-sheet. Learned Special Public Prosecutor Shri Panchal further submitted that it is required to be mentioned that from 2002 to 2008, the petitioner has not taken any steps for which no explanation has been given, such similar matters were before the Hon’ble Apex Court, some of the matters were examined by the Human Rights Commission and there was wide publicity for such grievance if anybody wants to make. He submitted that it only shows the attitude of the petitioner that in spite of his own statement that he was not available and gone to Dhrangadhra and now he claims that he was present at the time of incident. He, therefore, submitted that there is no jurisdictional error which call for any interference with concurrent findings of two Courts below at such belated stage. Therefore, he submitted that the scope of exercise of discretion under Section 482 of the Criminal Procedure Code would be deleted. He submitted that on the contrary the record shows that the investigation has been made and as many as 56 persons have been charge-sheeted. The petitioner has not given any explanation as to how he has not made any grievance before any authority from 2002 to 2008. 5. In view of the rival submissions, it is required to considered, whether present petition which is filed for the prayer as stated above regarding further investigation can be entertained at such belated stage particularly from examining the records and facts and the say of the petitioner. 6. It appears that the petitioner, has come forward at such a belated stage to suggest that particular persons have not been arraigned for which he claims that he made the representation on 30.01.2008 which has not been considered. 6. It appears that the petitioner, has come forward at such a belated stage to suggest that particular persons have not been arraigned for which he claims that he made the representation on 30.01.2008 which has not been considered. It is required to be mentioned that he has made representation on 30.01.2008 and the statements before the police has been recorded on 19.05.2002 and 20.07.002, he has not stated anything and in fact he has stated that he had gone to Dhrangadhra to his relative and only after he returns he knew that his house has been burnt. Even in his statement dated 06.03.2008, he has stated that he has seen the incident himself, he confirms that the case has been registered with Shaherkotada Police Stating being I-C.R.No.55/2002 and his statements have been recorded. He has also stated that he does not have any other evidence or witness with regard to the version what is stated by his statement dated 06.03.2008 and there is no explanation for such delay in making any such grievance from 2002 to 2008. He has not explained as to when he returns back after three months, why no such statement, representation, complaint was made either to the police or Human Right Commission or anybody else as rightly contended by the otherside. There was wide publicity of such commission for registering any complaint or grievance. 7. It is in the background of these facts considering the manner in which the application has been made and considering the concurrent findings arrived at by the two Courts below, the Court is not inclined to interfere with the impugned order. It is well settled that the scope of exercise of jurisdiction / discretion under Section 482 of the Criminal Procedure Code is to be exercised with care and circumspection and the exercise of the power under Article 226 of the Constitution of India is to be exercised for justifiable reason which does not exist except his bare statement on the basis of which the petitioners now desire further investigation to arraign somebody as accused. In the facts and circumstances of the case, the present petition deserves to be dismissed, and accordingly, stands dismissed.