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2018 DIGILAW 1227 (GUJ)

Atulbhai Rameshchandra Modi v. State of Gujarat

2018-11-02

A.P.THAKER

body2018
JUDGMENT : A.P. Thaker, J. 1. The applicants - accused have filed the present application under Section 397 read with Section 401 of the Criminal Procedure Code, 1973 (hereinafter be referred to as 'the Code') against the order dated 29.09.2009 passed by the learned Special Judge, Fast Track Court, Bharuch, Camp at Ankleshwar in Special Atrocity Case No. 35 of 2009, whereby the learned Special Judge has allowed the application of learned Additional Public Prosecutor and has ordered to consolidate both Special Atrocity Cases No. 35 of 2009 and 39 of 2001. 2. The applicants are the accused in Special Atrocity Case No. 35 of 2009 and Special Atrocity Case No. 39 of 2001 which have been pending for trial in the Trial Court. By way of the present application, the applicants have challenged the order of consolidation of both the Special Atrocity Case No. 35 of 2009 and Special Atrocity Case No. 39 of 2001. 3. Brief facts of the present case, in nutshell, are as under:- 3.1 That the First Information Report (FIR) being C.R. No. II-104/2001 came to be registered with Ankleshwar City Police Station on 09.06.2001 for the offences punishable under Sections 323, 504, 506(2) and 114 of the Indian Penal Code and under Section 3(1)(x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (hereinafter be referred to as "the Act") against the present applicants. After completion of investigation, the charge-sheet came to be filed against the accused person for the aforesaid offences. 3.2 As the said offences were triable by the Court of Sessions, the learned Judicial Magistrate committed the case to the Court of Sessions. The charge against the accused came to be framed by the learned Special Atrocity Judge on 12.07.2002 for the aforesaid offences. 3.3 Thereafter, the trial commenced and two panch witnesses have been examined. The original complainant, however, on 14.10.2002 had submitted an application for re-investigation, as the investigation was not done by the Deputy Superintendent of Police as per Rule 7 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (hereinafter be referred to as "the Rules). 3.4 The said application has been contested by the applicants and the same has been rejected by the Additional Sessions Judge, Fast Track Court No. 4, Bharuch on 29.04.2004. 3.4 The said application has been contested by the applicants and the same has been rejected by the Additional Sessions Judge, Fast Track Court No. 4, Bharuch on 29.04.2004. 3.5 Being aggrieved and dissatisfied by the aforesaid order, the original complainant had preferred Criminal Revision Application No. 431 of 2004 before this Court. This Court vide order dated 09.07.2004 admitted the said criminal revision application and stayed further proceedings of Special Atrocity Case No. 39 of 2001. 3.6 It is alleged that the Deputy Superintendent of Police, Ankleshwar started re-investigation on 06.02.2007 after reporting to learned Judicial Magistrate, First Class, Ankleshwar and on the basis of the order of the Deputy Superintendent of Police dated 22/26.05.2004, though the further proceedings of the said case was stayed by this Court. 3.7 Consequently, on 28.03.2007, the Deputy Superintendent of Police submitted the supplementary charge-sheet to the learned Judicial Magistrate, First Class, Ankleshwar. The accused summoned by the learned Judicial Magistrate, First Class, Ankleshwar for furnishing the bail and they learnt that the said Court was going to commit the said case to the Court of Sessions, though the said case had already been committed. 3.8 On 23.08.2007, the Advocate of the accused had filed the purshish and declared that there is no need to commit another Sessions Case based upon the supplementary charge-sheet, as the said case was already committed to the Special Judge, Fast Track Court, Ankleshwar in the year 2001. 3.9 The heed of the accused has been disregarded by the learned Judicial Magistrate, First Class, Ankleshwar and subsequently, another Sessions has also been committed based upon the said supplementary charge-sheet and other Police papers, which can be termed as second set of investigation. 3.10 In the meanwhile, the Criminal Revision Application No. 231 of 2004 came up for final hearing before this Court. On 26.03.2009, accused drew the attention of the Court by placing the copy of the supplementary charge-sheet filed by the Dy. S.P. and submitted that the petition may now not survive as essentially the prayer made in the petition is satisfied. The applicant - complainant, therefore, withdrew the said application. 3.11 Thereafter, the Fast Track Court ought to have discharged the accused in the old case i.e. Special Atrocity Case No. 39 of 2001, as the same was based upon the unauthorized and illegal investigation. The applicant - complainant, therefore, withdrew the said application. 3.11 Thereafter, the Fast Track Court ought to have discharged the accused in the old case i.e. Special Atrocity Case No. 39 of 2001, as the same was based upon the unauthorized and illegal investigation. Besides, it cannot be proceeded further, as the said illegality committed during the investigation is incurable. 3.12 The learned Additional Public Prosecutor submitted an application on 31.07.2009 in Special Atrocity Case No. 35 of 2009 with a request to treat the supplementary charge-sheet as report of further investigation and requested to conduct the trial jointly of both the cases. The accused have raised objection and opposed the said application on many occasions. The learned Special Judge, Fast Track Court, Bharuch, Camp at Ankleshwar allowed the said application on 29.09.2009 and ordered to consolidate both Special Atrocity Cases No. 35 of 2009 and 39 of 2001. 4. Heard learned Advocate Mr. Kashyap Joshi appearing for the applicants and learned Additional Public Prosecutor Ms. Jirga Jhaveri appearing for the respondent - State. 5. Learned Advocate Mr. Joshi appearing for the applicants has mainly contended that initially, the investigation was carried out by unauthorized Officer and whereby Special Atrocity Case No. 39 of 2001 was filed against the accused and in the meanwhile, the complainant approached this Court for curing defects and, therefore, during the pendency of the said criminal revision application, investigation was carried out by the authorized Officer and subsequently, the authorized Officer has filed new charge-sheet which has been registered in Special Atrocity Case No. 35 of 2009. He has contended that during the trial of the first special atrocity case, the learned Additional Public Prosecutor filed application for consolidation of both the cases and thereby the learned Trial Judge has ordered to consolidate both the cases together. According to him there was no order from the Court for further investigation. According to him, the reasoning given by the Trial Court in the impugned order is not proper. According to him, the first investigation was illegal, whereas, the second investigation is legal and proper. It is his submission that the accused be discharged from the first special atrocity case and second special atrocity case may be continued. Learned Advocate Mr. According to him, the reasoning given by the Trial Court in the impugned order is not proper. According to him, the first investigation was illegal, whereas, the second investigation is legal and proper. It is his submission that the accused be discharged from the first special atrocity case and second special atrocity case may be continued. Learned Advocate Mr. Joshi has relied upon the decision of the Hon'ble Supreme Court in the case of State of M.P. v. Chunnilal @ Chunni Singh, reported in 2010 (1) GLR 260 . Learned Advocate Mr. Joshi has prayed to allow the present criminal revision application. 6. Learned Additional Public Prosecutor Ms. Jhaveri appearing for the respondent-State has mainly contended that there is no perversity in the impugned order and it is an interim order and the order is just and proper. She has stated that the accused can agitate at the final hearing. She has also referred to the oral order passed in Criminal Revision Application No. 431 of 2004 and has also stated that after due observation of the Rules, the charge-sheet has been filed by the specified Officer and accordingly, the aforesaid criminal revision application has been withdrawn. She has prayed to dismiss the present criminal revision application. 7. In the case of Chunnilal @ Chunni Singh (supra), it has been observed that as per the Scheduled Casts and Scheduled Tribes (Prevention of Atrocities) Act, 1989 read with Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995, the investigation into an offence under the Act needs to be carried out "by a Police Officer not below the rank of a Deputy Superintendent". It is also observed in the said decision that if the investigation is carried out by the Officer below the specified rank, it would be illegal and invalid. It has also been observed in the said decision that when the incident amounts to offences under the Indian Penal Code as well as under the Atrocities Act, the investigation would be valid so far as offences under the Indian Penal Code are concerned. 8. Now under Section 397 read with Section 401 of the Code which is a revisional jurisdiction of the High Court. 8. Now under Section 397 read with Section 401 of the Code which is a revisional jurisdiction of the High Court. Under revisional jurisdiction, the High Court can call upon the record of any inferior Court and examine the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of such interior Court and to pass appropriate orders. It is well settled law that though revisional powers of the High Court are very wide but are purely discretionary and should be exercised only in a rare cases to prevent miscarriage of justice and when there is glaring defect in procedure on point of law resulting in failure of justice. It is also well settled that the revisional jurisdictional cannot be exercised to substitute its own view with that of Magistrate on question of fact. Unless, the finding of the Court below is shown to be perverse or untenable in law or is based on irrelevant evidence or ignoring relevant evidence, it is impermissible to interfere with the order of the Court below in revisional jurisdiction. 9. Now considering the aforesaid legal aspects of the matter, on consideration of the impugned order, it is found that the trial Court has merely ordered to consolidate two cases and directed to record the evidence in of one of them. It is pertinent to note that earlier as the investigation was carried out by non-specified Officer whereby earlier atrocity case was filed which was challenged by the complainant by filing criminal revision application before this Court. During pendency of Criminal Revision Application No. 431 of 2004, the specified Officer under the Act and Rules namely the Deputy Superintendent of Police has carried out the investigation and filed a supplementary charge-sheet, the aforesaid Criminal Revision Application No.431 of 2014 came to be withdrawn by the complainant. It is pertinent to note that the copy of the second charge-sheet was supplied by the accused side before this Court. 10. Now, on perusal of the record, it is clearly found that the powers of further investigation is also available with the Police under Section 173(8) of the Code. In the present case, to cure the defect of earlier investigation, the specified Officer has carried out the further investigation. 10. Now, on perusal of the record, it is clearly found that the powers of further investigation is also available with the Police under Section 173(8) of the Code. In the present case, to cure the defect of earlier investigation, the specified Officer has carried out the further investigation. Of Course, in the previous case supplementary charge-sheet could have been filed, but instead of doing so, the separate charge-sheet has been filed by the specified Officer which has been numbered as another special atrocity case. Now, if both the cases are clubbed and evidence is recorded in one of them, there is no illegality and the accused can take necessary defence as, are legally available in the aforesaid special cases itself. By the impugned order, no legal right of the applicant is infringed. It is merely an interlocutory order and it cannot be said to be perverse one. As such, the impugned order is not liable to be set aside. 11. Resultantly, the present criminal revision application is found to be devoid of merits and deserves to be dismissed. Accordingly, it is dismissed. Rule is discharged. Interim relief granted earlier stands vacated. Record and Proceedings to be sent back to the Trial Court forthwith.