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Gujarat High Court
Judgename :N.N.MATHUR
I.B.VYAS,police INSPECTOR - Appellant
Versus
STATE - Respondent
S.CRI.A. 1302 of 1997
Decided On : 12/04/1997
[See Para 14]
In case both the Courts are subordinate to the same High Court, under Clause (a), the decision shall be taken by the same Court. But in a case where the two different Courts are the Courts subordinate to different High Courts, under Clause (b), the decision shall be taken by the High Court within the local of whose appellates criminal juriediction the proceedings limits first commenced. This provision incorporates a principle of earlier commencement of proceedings to avoid possible confusion or embarrassment.
[Para 15]
(b) Criminal Procedure Code, 1973 — Sec. 173 (8) — Further investigation with the police — While submitting the Final Report the police requested the Court to grant it, as there was substantial case against the arrested person — His bail bonds not asked to appear for any other case — This ends the matter that at the time no case was pending in Gujarat — Thus the present petition is not covered by Sec. 186 — The judgment has elaborately discussed the facts of the entire case and the Court observed that it has no hesitation in saying that the so-called investigation in C.R. No. 216/96 is nothing but a farce.
[See Para12]
(c) Criminal Procedure Code, 1973 — Sec. 169 — Whether the Court considering under this section can be said to have taken cognizance of the offence (as in FIR Case No. 403/96) making an enquiry or trial pending in that Court — The Honble Court looked into the various provisions concerning taking cognizance of an offence — The celebrated judgment — AIR 1968 SC 117 : Abhinandan Jha vs. Dinesh Mishra was referred — Held, there was no case pending at Palanpur at that time — Cognizance of the offence takes place when the Magistrate takes judicial notice of the offence.
If the police intended to proceed with the investigation for offence under Sec. 58 (2) of the NDPS Act, the Police Officer Incharge of the case should have released Sumersingh on bond with direction to appear before a Magistrate empowered to take cognizance of the offence on police report. There was absolutely no occasion to submit police report under Sec. 169 known as `final report and to pray for its acceptance. After investigation of the facts constituting offence under Sec. 58 (2) of the NDPS Act, the report could have been submitted under Sec. 173 of the Code and also asking for discharge of bonds given by Sumersingh under Sec. 173 (3) of the Code at that stage. If necessary, police could say for further investigation under Sec. 173 (8) of the Code.
[Para 21]
( 1 ) TWO Misc. Criminal Applications being Nos. 6163 and 6164 of 1997 have been filed by the respondent Mohanlal, P. I. , police station kotwali, Pali, Rajasthan under Art. 226 (3) of the Constitution of India with a prayer to vacate the ex-parte stay order dated 29-9-1997 whereby the further investigation in F. I. R. Case No. 403 of 1996 registered at Kotwali, Pali police station, State of rajasthan has been stayed. This Court directed to hear these applications as well as the main Special Criminal Applications together. Thus, the main petitions are taken up for final hearing.
( 2 ) SPECIAL Criminal Application No. 1302 of 1997 has been filed by Shri I. B. Vyas, P. I. , Local Crime Branch (L. C. B.), Palanpur, Mehsana and at present P. I. , civil Defence Office, Kothi Kacheri, Vadodara, seeking following directions :"[a] Your Lordships be pleased to issue appropriate writ, direction or order to transfer the criminal proceedings of F. I. R. Case No. 403 of 1996 from Pali Kotwali police station for investigation and trial with C. R. No. 216 of 1996 at Palanpur in the interest of justice". Special Criminal Application No. 1309 of 1997 has been filed by the State of gujarat, seeking the following directions :"[a] Your Lordships may be pleased to issue a writ of mandamus or a writ of any other appropriate nature, order or direction, transferring the criminal proceedings of F. I. R. Case No. 403 of 1996 from Pali Kotwali police station for investigation and trial with c. R. No. 216 of 1996 registered at Palanpur City police station. "point of Controversy
( 3 ) THE point involved in these petitions pertains to applicability of S. 186 of the Code of Criminal Procedure, 1973 (for short, "the Code") in the facts of the case. On scrutiny of both the petitions and S. 186 of the Code, it is painfully observed that the State of Gujarat, has chosen to approach this Court in its extraordinary jurisdiction under Art. 226 of the Constitution of India by way of wholly misconceived petitions perhaps only with a view to protect some of the officers against whom there are serious allegations constituting offence under various I. P. C. provisions and N. D. P. S. Act. We have burnt our fingers by granting an ex-parte stay order bringing the investigation at an advanced stage to complete halt. Having examined the matter in depth and detail, prima facie, it appears that there was a deep rooted conspiracy for achieving unlawful object. The learned Advocates appearing for the petitioners have not been able to point out if any enquiry or trial is pending in any Court in the State of Gujarat with respect to same offence of F. I. R. Case No. 403 of 1996 of Kotwali police station. Section 186 of the Code is concerned itself only to a situation when two or more Courts have taken cognizance of the same offence. The prayer in both these petitions is to transfer the criminal proceedings of C. R. No. 403 of 1996 from Kotwali police station, Pali for investigation and trial with C. R. No. 216 of 1996 registered at Palanpur City police station. The investigation and trial are two different stages and they do not go together except in certain situation such as further investigation under S. 173 (8) of the Code, which is not the case of the petitioner. Be that as it may, there is no prayer for transfer of any enquiry or trial from any Court of Rajasthan to a Court in the State of Gujarat. The prayer is for transfer of criminal proceedings in F. I. R. Case No. 403 of 1996 for the purpose of investigation. Therefore, both the petitions are liable to be dismissed on the very ground that the prayer sought are not covered within the ambit of S. 186 of the Code.
( 4 ) HOWEVER, since number of contentions have been raised and the facts in detail have been stated by the respective parties, I consider it appropriate to state the facts and deal with the contentions. Contentions (i) In Special Criminal Application No. 1309 of 1997 filed by the State of gujarat,
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