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2017 Supreme(Guj) 41
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. Pardiwala, J.
Ratilal Veljibhai Kasundra - Appellant
Vs.
State of Gujarat and Ors. - Respondents
Special Criminal Application (Direction) No. 2198 of 2015
Decided On : 12-01-2017
For the Appellant : C.P. Chaniyara
For the Respondents: Thakore
Headnote:
Constitution of India, 1950 – Articles14, 20, 21 and 226 – Indian Penal Code, 1860 – Sections 279, 339, 338, 304-A and 429 – Motor Vehicle act – Sections 177, 184 and 134 – Accident – Grievous injuries – Death – Investigation – Rash driving or riding on a public way – Power of Magistrate and Superior court for investigation – Seeking order or directing Respondent No. 3 to order reinvestigation in CR lodged before Police Station and to be done by another officer – Accident occurred in evening applicant and his nephew, (deceased) were returning to their village in their respective bullock carts – Applicant was in front riding his bullock cart and his nephew was following him riding his own bullock cart – White coloured Tata Indica Car came from behind in full speed and rammed into bullock cart of his nephew impact was so severe that nephew died on spot – On account of the severe impact, bullock cart of deceased fell on bullock cart of the writ applicant – Applicant got flung on one side of road resulting in grievous injuries on his head, elbow, leg and hip – Held, Defective, biased or the mala fide investigation or a tainted investigation cannot give rise to a valid charge-sheet, because such investigation would, ultimately, prove to be precursor of miscarriage of criminal justice – Not only "fair trial, but "fair investigation too form part of Constitutional rights guaranteed under Articles 20 and 21 of Constitution – Investigation must be fair, transparent and judicious. In fact, fairness in investigation and, consequently, fairness in trial form the basic minimum requirement of the "rule of law. When non-interference by the Court with an investigation would, ultimately, result in failure of justice, the Court must interfere – A reference, in this regard, may be made to the case of Babu Bhai (supra) wherein Supreme Court observed thus – Investigating officer may exercise his statutory power of further investigation in several situations as, for example, when new facts come to his notice; when certain aspects of matter had not been considered by him and he found that further investigation is necessary to be carried out from a different angles keeping in view fact that new or further materials came to his notice – Apart from aforementioned grounds Magistrate or superior courts can direct further investigation, if investigation is found to be tainted and/or otherwise unfair or is otherwise necessary in the ends of justice – Application allowed. (Paras 25, 27 and 28)
J.B. Pardiwala, J.
1. Rule returnable forthwith. Ms. Thakore, the learned APP, waives service of notice of rule for and on behalf of the respondents.
2. By this writ application under Article 226 of the Constitution of India, the writ applicant-original first informant has prayed for the following reliefs;
"(A) Your Lordships be pleased to admit this Special Criminal Application.
(B) Your Lordships allow this Special Criminal Application by issuing appropriate writ or order thereby directing Respondent No. 3 to order reinvestigation in CR-I-111/2014 lodged before Morbi Taluka Police Station and to be done by another officer;
(C) Your Lordships be pleased to allow this Special Criminal Application by directing Respondent No. 3 to direct the investigating officer to fairly investigate this offence after adding names of real driver;
(D) Your Lordships be pleased to allow this Special Criminal Application by directing Respondent No. 3 that this investigation may be supervised by an officer superior to the rank of investigating officer.
(E) Grant such other and further reliefs in favour of petitioner as may be deemed just and proper by this Hon'ble Court in the interest of justice.
(F) Issue interim relief by directing that, pending admission, hearing and final disposal of the above Special Criminal Application, to stay the further proceedings of the Criminal Case No. 383 of 2015 in Morbi Court."
3. The case of the writ applicant may be summarized as under;
3.1 The writ applicant is an agriculturist and is residing at the village Amran (Diamond Nagar), situated in the Taluka: Morbi, District: Morbi.
3.2 On 26th September, 2014, at around 7:00 O' clock in the evening, the writ applicant and his nephew, namely, Rajeshbhai Thakarshibhai Kasundra (deceased) were returning to their village in their respective bullock carts. The writ applicant was in the front riding his bullock cart and his nephew was following him riding his own bullock cart. It is his case that a white coloured Tata Indica Car came from behind in full speed and rammed into the bullock cart of his nephew. The impact was so severe that the nephew died on the spot. On account of the severe impact, the bullock cart of the deceased fell on the bullock cart of the writ applicant. The writ applicant got flung on one side of the road resulting in grievous injuries on his head, elbow, leg and hip. It is the case of the writ applicant that he witnessed the driver of the Indica Car, namely, Dilipbhai Maganbhai Gambhva getting out of the car. The colleague of Dilipbhai Maganbhai Gambhva, namely, Jagdishbhai @ Vishal Mansukhbhai Kasundra, who was travelling in the car also came out. The writ applicant requested both to help him as he had sustained severe injuries, whereas the nephew was found to be dead. However, instead of helping the writ applicant and calling for the medical aid, both ran away from the spot of the accident. The writ applicant, thereafter, somehow, was able to call up his son, who arrived at the spot of the accident with an ambulance. The writ applicant was admitted in the hospital at Morbi. The nephew passed away on account of the severe head injuries.
3.3 The writ applicant, thereafter, requested the police to register the first information report. It is the case of the writ applicant that although he had narrated the exact event, yet the police, for some reason or the other, noted in the first information report that a truck had a head on collision, first with the bullock cart of the writ applicant and, thereafter, with the bullock cart of the deceased. The first informant has levelled serious allegations that his signature on the first information report is not genuine and has been forged.
3.4 He preferred a detailed representation in this regard dated 12th October, 2014 addressed to the Police Sub-Inspector of the Morbi Police Station and a copy of the same was forwarded to the Deputy Inspector General of Police, Rajkot, District Superintendent of Police, Morb
