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2020 DIGILAW 941 (GUJ)

Lilaben Kasabhai Makavana v. State Of Gujarat

2020-12-02

B.N.KARIA

body2020
ORDER : 1. Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of respondent-State. 2. By way of present petition, the petitioner has prayed to direct the Investigation to be conducted by independent Investigating Agency of the State i.e. C.I.D. Crime and further prayed to allow this petition directing the suspects to undergo tests that are scientifically approved methods/technique for increasing efficiency of investigation. 3. Heard learned advocate for the petitioner and learned APP for the respondent-State. 4. It is submitted by learned advocate for the petitioner that petitioner seeks proper and fair investigation to be conducted by the independent Investigating Agency of the State i.e. C.I.D. Crime in regards to missing a person i.e. Gita (victim) who is suspected to be killed by her own husband i.e. Mahesh and for which he frequently made his representations dated 24.12.2019. 12.06.2020, 24.06.2020 and 01.07.2020. That the investigation conducted by Una Police Authorities is ex facie illegal, erroneous, partial and biased making it contrary to the facts and circumstances of the case, evidence on record, provisions of law and settled legal position and more particularly overlooking undisputed fact that there is intentionally suppression of many material facts and several material witnesses and suspects are not examined by the police authorities during the investigation making the entire case of the petitioner. That it has been more than 12 months since present petitioner/original complainant first informed the police authorities regarding her missing daughter but no investigation has taken place nor any final report has been filed nor the present petitioner has been informed about the same in any manner. That the investigation has constantly been hindered and interfered by the clan/gang/association consisting Mahesh (suspect), Vijay alias Pothiyo, Rahul @ Yashwant Babhaniya, Sanjay Bhaga Babhaniya and Chintan Ghadvi, who had also played a significant role in coercing the petitioner and her family members to withdraw the representations and/or the complaint which was made before the police authorities at Una. Moreover, they have also unduly influenced the police authorities not to react and/or investigate the current issue as they being political heavyheads of the area and also involved in several criminal activities, whereby they were playing hand in glove with the police authorities. Hence it is requested by learned advocate for the petitioner to allow this petition as prayed for. 5. Hence it is requested by learned advocate for the petitioner to allow this petition as prayed for. 5. Learned APP has produced a report dated 01.12.2020 under the signature of Police Inspector, A.C.B. Gir Somnath addressing to the Government Pleader, Gujarat High Court, Ahmedabad, which is taken on record. 6. While opposing the prayer made by the present petitioner learned APP for the respondent-State has argued that as local crime branch is investigating the inquiry scientifically without prejudice to the petitioner and with an accurate manner, or prayer made by the present petitioner may by granted by this Court. That time to time investigating agency has produced the reports showing the progress of the investigation in connection with the complaint made by the petitioner. That lie detection test of three suspected accused persons was also sought for by the prosecution but such prayer was rejected by the learned Trial Court, and therefore, Criminal Revision petition No.13 of 2020 was also preferred by the prosecution before the learned Additional Session Judge, Una, which was rejected on 27.11.2020. That sufficient technology was used by the prosecution and, therefore, there is no question of denying justice as apprehended by the present petitioner. That the report of the investigating agency falsifies apprehension of the present petitioner that no proper investigation is carried out to find out the culprit and as there is no substance in the prayer made by the present petitioner, learned APP for the respondent-State has requested to reject the petition. 7. Having gone through the facts of the case as well as submissions learned advocate for the petitioner as well as learned APP for the respondent-State, first of all this Court would like to refer Rule 465 of Chapter X of the Gujarat Police Manual, 1975 which clearly shows that in case of exceptional difficulty in investigation or in an important case, Special Organization i.e. Crime Investigation Department (C.I.D.) can investigate the case as therefore this being a case with an exceptional difficulty in finding the missing or killed daughter of the petitioner, such Investigating Agency should be appointed for free, fair, quick and unbiased investigation. 8. Further Rule 115 of Chapter IV of the Gujarat Police Manual, 1975, also clearly states that whereby it must to maintain records of missing persons in a register which included all kind of relevant information pertaining to the missing persons. 8. Further Rule 115 of Chapter IV of the Gujarat Police Manual, 1975, also clearly states that whereby it must to maintain records of missing persons in a register which included all kind of relevant information pertaining to the missing persons. None of the reasons/information regarding the victim/missing person has been entered by the Local Police Authorities in the register /station diary despite of several representations by the petitioner. The Local Police Authorities have completely behaved and investigated contrary to the Rule-115 (9) of the Gujarat Police Manual, 1975 by being unsympathetic & uncourteous towards the petitioner. 9. It is undisputed fact that since last more than 12 months daughter of the petitioner namely Gita (victim) was missing and no report of information pertaining to her missing daughter is being provided by the Investigating Authorities. True that, investigating agency has tried to find out suspect culprit but there is no final conclusion arrived at by the Investigating Agency after passing 12 months. Petitioner is not able to procure a copy of an FIR lodged in the Police Station or even the petitioner does not know whether any FIR has been filed or not. Before 12 months, present petitioner informed the police authorities about missing of her daughter but initially no investigation was carried out nor any final report was filed. Even the petitioner was never informed about the same in any manner. As per the allegations made by the petitioner before the police authorities, Mahesh (suspect), Vijay @ Pothiyo, Rahul @ Yashwant Babhaniya. Sanjay Bhaga Babhaniya and his allies i.e. Chintan Ghadvi had played a significant role in coercing the petitioner and her family members to withdraw the representations and/or the complaint, which was made before the police authorities at Una. But unfortunately police authorities did not react or investigate the current issue with the reasons but known to the investigating Agencies. Serious allegations are made by the petitioner that investigation is not being conducted by the police authorities in the prescribed manner as per the Rules and Guidelines mentioned in the Code of Criminal Procedure, 1973 and Gujarat Police Act. 10. Serious allegations are made by the petitioner that investigation is not being conducted by the police authorities in the prescribed manner as per the Rules and Guidelines mentioned in the Code of Criminal Procedure, 1973 and Gujarat Police Act. 10. Prima facie, it reveals that family members of the first wife of suspect-Mahesh and her family including family of Mahesh had problem with his second marriage and first wife of suspect-Mahesh did not want to share their new house at Golden City, which is the most probable cause why they have conspired against Gita (Victim). It also appears that numbers of times, petitioner approached the police authorities as well as Higher authorities but investigating agency could not able to come to the final conclusion. It is apprehended that daughter of the present petitioner namely Gita had been murdered by suspect-Mahesh and his allies. 11. As per opinion of this Court, Investigating Agency must conduct the investigation in free and prejudicial manner and should not have considered the stature and prominence of the probable suspects/accused who might be associated to any political party. The advance technology must be adopted by the Investigating Agency to arrive at final conclusion with accuracy and remaining tests also would be examined by the Investigating Agency. 12. It is a basic principle that under no circumstances can a person's right to fair investigation and trial should be hampered and denial of such right would amount to denial of principle of natural justice. Thus it is essential that the rules of procedure that have been designed to ensure justice and secure its ends are scrupulously followed, and the Police Authorities and Court must be zealous in ensuring that there is no breach of the same. 13. This Court, in case of Jaga Arjan Dangar v. State of Gujarat in Special Criminal petition No.6403 of 2018, has observed as under : NEED FOR NARCO ANALYSIS TEST AND BRAIN MAPPING TEST AND THE ADVANTAGES OF THE AFORESAID TESTS: The field of criminology has expanded rapidly during the last few years and the demand for supplemental methods of detecting deception and improving the efficiency of interrogation have increased concomitantly. The Investigating Agency has statutory right to investigate the crime and to find out the truth and to reach to the accused. The Investigating Agency has statutory right to investigate the crime and to find out the truth and to reach to the accused. Narco Analysis Test for criminal interrogation is valuable technique which would profoundly affect both the innocent and the guilty and thereby hasten the cause of justice. The Investigating Agency cannot be prevented to interrogate the case at the stage of investigation relating to crime in which he is shown as accused. If the aforesaid two tests are permitted, it would assist t he Investigating Agency in finding out the truth and find out the real culprit of the commission of an offence. When the Investigating Agency is absolutely in dark and after all efforts and exhausting all the alternatives still there is no further headway in the investigation, the aforesaid two tests would help the Investigating Agency to further investigate the crime and during the course of the aforesaid two tests and/or after completion, the Investigating Agency may get some clue and may be able to further investigate the crime and reach to the real accused / culprit who has committed offence. Accusations are made against the Investigating Officer using third degree methods to extract information from the accused and therefore there is a need to have such scientific tests. The scientific tests like polygraph test; P 300 test are like taking MRI or CT Scan and when the accused are not coming forward with the truth, the scientific tests are resorted to by the Investigating Agency to find out the truth and to have a further clue in the matter to further investigate the crime. Such scientific tests are prayed only as a last resort after exploring all the alternatives and when the Investigating Agency is not in a position to reach the accused and find out the truth. If the nature of the offence alleged to have been committed by the accused coupled with the circumstances under which it is committed affords reasonable grounds for believing that an examination of the person will afford evidence as to the commission of the offence then such tests are necessary. It is a right of the Police Officer under the provisions of the Criminal Procedure Code to investigate the crime and collection of the evidence by the Police Officer is permissible under the law. It is a right of the Police Officer under the provisions of the Criminal Procedure Code to investigate the crime and collection of the evidence by the Police Officer is permissible under the law. Conducting of Narco Analysis Test and Brain Mapping Test on the accused are in process of collection of such evidence by the Investigating Agency. Section 161 of the Criminal Procedure Code enables the police to examine the accused also during the investigation. It is the duty of every person to furnish information regarding offence and it is the duty of every citizen / person to assist the State in detection of crime and bringing the criminals to justice. It is a statutory duty of every witness / person, who has knowledge of the commission of the crime to assist the State in giving evidence. The investigation of the crime on the scientific line is to help the Investigating Agency so as to enable collection of evidence to prove the guilt or innocence of the person accused of committing crime as the modern community requires modern scientific methods of crime detection, lest the public go unprotected. 14. Considering the peculiar facts of the present case, report submitted by learned APP for the respondent-State, this Court is of the considered opinion that this is a fit case to exercise the discretion in favour of the present petitioner by directing the Investigating Agency to apply and conduct the scientific investigation techniques for detection of the crime, and therefore, investigation shall be handed over to C.I.D. (Crime). The concerned Officer of the present Investigating Agency shall hand over all the investigation papers to the concerned Officer of C.I.D. (Crime) within a period of two weeks without any delay. Investigating Officer of C.I.D. (Crime) shall conduct further investigation in scientific manner with accuracy by adopting and using techniques as required. 15. With aforesaid observations and directions, present petitions stands allowed and accordingly stands disposed of. 16. Rule is made absolute to the aforesaid extent. 17. Direct service is permitted.