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2004 Supreme(Guj) 107
Gujarat High Court
Judgename :C.K.BUCH
NAGJIBHAI DAHYABHAI DESAI - Appellant
Versus
STATE OF GUJARAT - Respondent
CRI.REVN.APPLN541 of 2003
Decided On : 02/26/2004
Headnote:Criminal Procedure Code, 1973 (Central Act 2 of 1974) - Secs. 397/401 - Cognizance - Propriety of - On basis of first FIR learned Magistrate took cognizance for offences under Secs. 279, 304-A IPC and under Secs. 177, 184 & 134 Motor Vehicles Act - Learned Magistrate thereafter in the matter took cognizance under Sec. 190 (1)(B) of the Code for offences punishable under Secs. 302/34 & 114 IPC - Accused petitioners challenged the order of second cognizance on ground that same Court cannot take cognizance of two different offences on one and the same report submitted after investigation - Court quashed and set aside both orders and directed for further investigation.
The order of quashing process, initially issued by learned Magistrate, on the strength of the police report, submitted vide order dated 9.10.2003 and, the second order under challenge dated 22.10.2003, both can be quashed and the Court is of the view that such an order shall not prejudice the either side because, on examination of record brought before this Court, it is apparent that, any of these two orders issuing process of different offences on the police report submitted under Sub-sec. 2 of Sec. 173 CrPC sustains, then, there is scope of miscarriage of justice. It is likely to lead to some kind of frustration when some important statements are not the part of the charge sheet. Statement recorded under Sec. 161, CrPC recorded by the Investigating Officer at different stage are not made part of charge sheet and other circumstantial evidence which were available with the police, were also not placed with the report. Statement of Doctors, as observed earlier have not been recorded after showing the photograph of the deceased taken on the spot and, with or without showing those photographs, this is a case, wherein, some further detailed investigation is required and, all papers are required to be placed before the Court.
[Para 8]
( 1 ) RULE. Ms. Nandini Joshi waives formal service of notice of rule on behal of the respondent State. Petitioners are Original accused in Criminal Case No. 3805 of 2003 and they have challenged the legality and propriety of the order dated 20. 10. 2003 passed by learned Judicial Magistrate First Class, Deesa whereby he has taken cognizance of the offences punishable under Section 302, 34 and 112 of IPC.
( 2 ) ACCORDING to the petitioners one FIR was lodged on 10. 8. 2003 in Deesa Rural Police Station by one Chamar Babubhai Cheharbhai and the said complaint was registered as CR No. I-179/2003 under Section 279, 304a of IPC and Section 174, 184 and 134 of the Motor Vehicles Act (hereinafter referred as MV Act ). In the said complaint, petitioner No. 1 Nagjibhai Dahyabhai Desai was shown as accused. The said FIR is produced as Annexure-B and it is the case in the said FIR that the complainants brother, the deceased had gone to grace his cattle at the outskirts of his village and the complainant had gone to give water to his brother. At the time when he was about to reach his brother, he saw that the petitioner No. 1 Nagjibhai Dahyabhai Desai had run down his brother with his tractor and trolly. Trolly was loaded with earth and because of the hit given by the vehicle and other injuries, his brother died on the spot. It is also alleged that after the incident, accused Nagjibhai Dahyabhai Desai ran away. Thereafter, complainant went to his home and ultimately, by taking his relatives with him he approached the police station and lodged the complaint. According to the complainant, the incident has occurred on 10. 8. 2003 at about 13:00 hours. According to the petitioners, the complainant filed another complaint before the District Superintendent of Police, Banaskantha on 11. 8. 2003 naming the petitioner No. 2 and 3 and two other unknown persons in the offence and it is alleged in the second complaint that at the time when the complainant had gone to give water to his brother, accused were giving blows and inflicting injuries to his brother and his brother died because of the injuries caused by the accused persons. The allegation in the second complaint is that police was informed about the incident initially by the accused and, before the complainant could go to the police station and file his complaint, the police had arrived at the place of the offence and thereafter police had forcibly taken a wrong complaint and the FIR registered with Deesa Rural Police Station does not contain the true facts of the incident. On 1. 9. 2003, complainant made one another complaint to Dy. S. P. Banaskantha stating that Police is wrongfully acting under the influence of the sitting MLA of Deesa and Police is converting the case of murder into a case of accident. Serious complaints were made against the investigating Police Inspector. On 7. 9. 2003 the complainant sent one more application in the form of a complaint/grievance addressing to the Chief Minister with a copy to Dy. S. P. Banaskantha making further allegations against the panel of Doctors who performed the postmortem. It is the say of the petitioner that pursuant to the complaint made to the D. S. P. on 11. 8. 2003 the D. S. P. transferred the investigation of the incident from Police Inspector to Dy. S. P. The Dy. S. P. has verified the statement of witnesses and other persons recorded by Police Inspector and he further recorded the statements of witnesses. As the Dy. S. P. was satisfied that the incident was an accident and not offence of murder, he prepared the report accordingly and it was found during the investigation by Dy. S. P. Mr. Munia that at the relevant time, petitioner No. 1 Nagjibhai Dahyabhai Desai was not driving the said tractor with a loaded trolly but the accident is caused because of the rash and negligent driving of petitioner No. 4 Jakshi Raghunathbhai Harijan. Petitioner No. 4, therefore, was arrested in pursuant to such finding and was subsequentl
