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2007 Supreme(Guj) 466
2008 (1) GCD 688 (Guj)
Hon’ble Mr. Justice M.R. Shah
Vijaybhai Malabhai Bharwad and Ors.
Versus
State of Gujarat and Anr.
Special Criminal Application No. 1352 of 20071—Decided on 01.08.2007
Appearance :
Ms. Sonal R. Shah, for the Applicants No. 1-3.
Mr. R.C. Kodekar, Addl. Public Prosecutor for Respondent No. 1.
Rule Served, by DS for Respondent No. 2.
Decided in Favour of :
Respondent
Petition Dismissed
Headnote:Head Note :
Criminal Procedure Code, 1973 (Central Act 2 of 1974) — Section 482 — I.O. submitted the report to add — Sections 397 and 447 IPC and Section 25(1)(A)(B) of the Arms Act in the complaint — Magistrate ordered to be kept with FIR — Report also submitted to continue — Section 326 IPC in the complaint and order passed to be kept with FIR — Till the charge-sheet is filed and the charge is framed, no requirement to give opportunity of hearing to accused persons — Statutory right of the I.O. to investigate the case — By adding the section in FIR and passing of the order, no prejudice will be caused to accused — Powers of Police to investigate in cognizable offence is uncontrolled by the Magistrate — Held, no merits in the petition and dismissed.
Held :
At the time of initial report/intimation by the Investigating Officer to the concerned Magistrate adding the sections of the offence the accused are not required to be heard and the Magistrate is not required to consider any other things till the final report is submitted after conclusion of the investigation by the Investigating Officer and only at that stage, the concerned Magistrate has to apply his mind as to whether to accept the said report or not and there is a distinction between the report adding sections in the FIR at the initial stage and final report after conclusion of the investigation as contemplated under Sections 169/173 of the Criminal Procedure Code onwards. Till the charge-sheet is filed and the charge is framed, the accused have no locus and they are not required to be heard. During the course of the investigation if some accused are arrested and they are also added as accused in the FIR and when they are produced before the learned Magistrate and they are taken into judicial custody at that stage, neither the accused are required to be heard nor the learned Magistrate is required to apply his mind and is not required to consider as to whether any case is made out against those persons/accused. Under the circumstances, the trial Court has not committed any error and/or illegality and/or acted contrary to the provisions of the Criminal Procedure Code while passing the order on the report submitted by the Investigating Officer to add certain sections in the FIR - “TO BE KEPT WITH FIR” and while taking the petitioners – original accused of Special Criminal Application No. 1354 of 2007 into judicial custody. [Para 17]
M. R. Shah, J.—As in all these Special Criminal Applications common question of law and facts arise and the same are arising out of one common FIR being I CR No. 281 of 2007, these petitions are being disposed of by this common judgment and order.
2. At the outset, it is to be noted that earlier respective petitioners - original accused preferred Criminal Revision Application Nos. 200/2007, 206/2007 and 219/2007, however, subsequently, when all these Criminal Revision Applications came up for hearing before the learned Single Judge (Coram: Mr. M.D. Shah, J.), the learned Single Judge was of the opinion that the orders impugned in the said Criminal Revision Applications are of interlocutory nature. Shri Y.N. Oza, learned Senior Advocate appearing on behalf of the respective petitioners sought permission to convert the said Criminal Revision Applications into the Special Criminal Applications and considering the said request, an order came to be passed to convert all the said Criminal Revision Applications into Special Criminal Applications and that is how these Special Criminal Applications are registered as Special Criminal Application Nos. 1352 of 2007, 1353 of 2007 and 1354 of 2007.
3. Few facts leading to the present Special Criminal Applications in nutshell are as under:—
That a criminal complaint has been registered/lodged with Umra Police Station, Surat against the present accused persons being I CR No.281 of 2007 initially for the offences punishable under Sections 395, 326, 323, 506(2), 143, 147, 149, 120(B), 34 and 188 of the IPC. That the said complaint was lodged before the Umra Police Station, Surat on 05.04.2007 at 11.00 p.m. and the first information was given to the Police Inspector at 11.00 p.m. on 05.04.2007 and to the P.S.O., Umra Police Station at 11.30 a.m. on 05.04.2007. On receiving the information, the Investigating Officer/Police Inspector, Umra Police Station started the investigation and on the next day itself, i.e. on 06.04.2007, the Investigating Officer also came to know that approximately 70 to 80 persons came in different vehicles; attacked the security personnels and used deadly weapons and caused the injuries to the persons named in the FIR and subsequently they have run away and therefore, as per the Investigating Officer Sections 397 and 447 is to be added in the complaint and the investigation is also to be made for the offence under Sections 397 and 447 of the IPC as well as Section 25(1)(A)(B) of the Arms Act therefore, the Police Inspector, Umra Police Station reported to the learned Chief Judicial Magistrate, Chief Court, Surat for adding Sections 397 and 447 of the IPC and Section 25(1)(A)(B) of the Arms Act in the complaint and the learned 2nd Additional Senior Civil Judge & Chief Judicial Magistrate, Surat by order dated 06.04.2007 passed an order “TO BE KEPT WITH FIR.” That during the course of the investigation, the concerned Investigating Officer was also of the opinion that offences under Section 326 is also made out and therefore, he sent the report to the learned Chief Judicial Magistrate, Surat on 11.04.2007 for continuing the offence under Section 326 of the IPC and the learned Chief Judicial Magistrate, Surat passed an order on 11.04.2007 “KEPT WITH FIR.” During the course of the investigation, the Investigating Officer found that 36 persons named in the report dated 06.04.2007 (petitions of Special Criminal Application No. 1354 of 2007) have also committed the offence and they were the part of the mob and they were arrested on 6.4.2007 and therefore, after arrest, the Investigating Officer, Umra Police Station reported to the learned Chief Judicial Magistrate with regard to their arrest and to take them in the judicial custody and all those persons were produced before the learned Chief Judicial Magistrate, Surat and on production of all those accused before him, after ascertaining as to whether there is any complaint against the Police Officer or not, passed an order
