2007 Supreme(Guj) 399

Gujarat High Court
Judgename :M.R.Shah
AMIT VISHNUPRASAD GAJJAR - Appellant
Versus
STATE OF GUJARAT - Respondent
Special Criminal Application 982 Of 2007
Decided On : 07/09/2007

Headnote:

None

Fact of the Case:

The complainant, Bhavanbhai Nathubhai Desai, filed a complaint on 17.10.2006 in the Court of learned Chief Metropolitan Magistrate, Court No. 13, Ahmedabad against the respective petitioners and other accused for the offences punishable under Section 141, 147, 149, 383, 395, 397, 440, 452, 506 (2)and 120 (B) of the I. P. C. r. w. Section 25 (C) of the Arms Act. In the said complaint it has been averred / alleged as under:- 3.1 One Natraj Cinema situated on the Ashram Road, Ahmedabad and "dairy Den" became a tenant of Natraj cinema and one Shri Harishbhai fulchandbhai Shah is the owner of the said "dairy Den. " The complainant is working as security Officer of Devanshi Enterprise who is looking after security of the said "dairy den. " 3.2 He has stated that he was present on his duties at 6 O clock in the morning on 8.10.2006. At that time accused nos. 1 to 9 i. e. namely, (1) Yogendra Ratilal patel, (2) Pragnesh Hariprasad Parikh, (3)Amit Gajjar (4) Saurabh Desai, (5) Ashok mistry, (6) Arvind Mistry (7) Chetan @ Gai (8) Snehal Hariprasad Parikh (9) Kokilaben bhanusinhji Desai came with about 30 to 40 persons to the parlour of Dairy Den and two persons placed a revolver on his forehead and dragged him to the backside of Natraj cinema towards a temple. They told him that if the complainant made a slightest noise, they would kill him. The accused had started demolishing Ice Cream Parlour of the company. At that time the complainant informed accused No. 3 Amitbhai Gajjar that let him inform to the persons of the company. Accused Nos. 1 and 2 informed him to keep mum and did not allow him to telephone. The other person namely pankajbhai came at about 8 O clock and he was also confined with the complainant. 3.3 Thereafter, Shri Pankajbhai and the complainant were freed at about 11 o clock and Shri Pankajbhai and the complainant went to the parlour and saw that the furniture of the parlour, Ice Cream machine, Freeze, Computer, Cash box and other articles with cash amount of Rs. 40,000/- were looted and damage was done. Thereafter, both of them informed their manager Shri Kaushikbhai. He immediately reached the parlour. Then he took them to the factory at Kochrab-Paldi. When they reached there, their security officer bharatsinh told that some unknown persons came with a truck and told that Kaushikbhai had sent them and they threw counter, table, freeze and other articles and ran away with the truck (with all goods ). 3.4 Thereafter, the complainant filed complaint in writing on 8.10.2006 to navrangpura Police Station. The Police station Officer accepted the same but the police has not taken any cognizance. No investigation was made and an offence was also not registered. The police did not respond properly and therefore the complainant was required to file complaint before the learned Chief Metropolitan magistrate on 17.10.2006.

Finding of the Court:

The court held that the order refusing to grant the remand of an accused is required to be considered as interlocutory order so far as State is concerned also as both the orders i. e. granting application of remand and to reject the same, both are passed under Section 167 of the Criminal procedure Code and that it cannot be that for one party it is a final order and for the other party it is an interlocutory order.

Issues: 1. Whether the present case is required to be referred to the Division Bench and/or the decision of the learned Single Judge of this Court in Special Criminal Application No. 1697 of 2005 is a decision per-incuriam, 2. Whether an order refusing to grant the remand of an accused on an application by the Investigating Agency is a final order so far as State is concerned and therefore, the criminal Revision Application under Section 397 of the Criminal procedure Code is maintainable or not.

Ratio Decidendi: 1. A decision given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned is a per-incuriam. 2. An order refusing to grant the remand of an accused on an application by the State is a final order so far as State is concerned as it adversely affects the rights of the investigating Agency to investigate and have the custodial interrogation and therefore, the criminal Revision Application against the said order under Section 397 of the Criminal procedure Code is maintainable.

Final Decision: The court dismissed the Special Criminal Application No. 982 of 2007, Special Criminal Application no. 983 of 2007 and Special Criminal Application No. 974 of 2007 filed by the original complainant.