Faridabanu vs State of Gujarat and Others

M.R. Shah, J.—Present Special Criminal Application under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure has been preferred by the Petitioner - original complainant to quash and set aside the impugned order dated 01/11/2010 passed by the learned JMFC, Borsad below application dated 01/11/2010, by which the learned Magistrate has rejected the said application submitted by the Petitioner to add offence u/s 307 of the Indian Penal Code in complaint/FIR being C.R. No. I-198/2010 registered with Borsad Town Police Station. In the alternative it is prayed to direct the Respondents to ensure proper and effective investigation in connection with the FIR registered as C.R. No. I 198/2010 with Borsad Town Police Station after addition of the offence u/s 307 of the IPC.

Shri Hriday Buch, learned advocate appearing on behalf of the Petitioner has vehemently submitted that infact looking to the injury and weapon used on the vital part of the body of the victim, it is a clear case of Section 307 of IPC and still the investigating officer has not addedthe offence u/s 307 of the IPC against the accused persons of complaint/FIR being C.R. No. I-198/2010. It is submitted that looking to the medical/injury certificate when an application was submitted to the learned Magistrate to add offence u/s 307 of IPC , the learned Magistrate ought to have granted the same. It is further submitted that even the concerned investigating officer was required to add offence u/s 307 of the IPC and is required to investigate into the offence u/s 307 of the IPC also.

Having heard learned advocates appearing on behalf of the respective parties at length, it appears that a complaint being C.R. No. I-198/2010 has been lodged with the Borsad Town Police Station for the offences punishable under Sections 143, 147, 148, 149, 324, 337, 504, 506(2) of Indian Penal Code. However, it is the case on behalf of the Petitioner - original complainant that infact looking to the injury and the weapon used, it is a case of Section 307 of IPC and therefore, an application was submitted before the learned Magistrate to add the offence u/s 307 of the IPC, which is rightly rejected by the learned JMFC at this stage. Unless and until an appropriate report is submitted by the concerned investigating officer, the learned Magistrate at this stage has no jurisdiction to pass any order to add a particular offence. Hence, no illegality has been committed by the learned Magistrate in dismissing the said application at this stage.However, on investigation it is always open for the investigating officer and having been satisfied that during the investigation, it is found that an offence punishable u/s 307 of IPC also is committed, in that case, it is always open for the concerned investigating officer to add the offence u/s 307 of the IPC and make a report to the concerned learned Magistrate which will form part of the FIR. However, it is for the concerned investigating officer to make such a report.

Considering the above, Shri Hriday Buch, learned advocate appearing on behalf of the Petitioner has submitted that in that case Petitioner will approach the concerned investigating officer/DSP requesting to add the offence u/s 307 of the IPC and therefore, it is requested to make suitable observation.

In view of the above, present Special Criminal Application is disposed of permitting the Petitioner to submit an appropriate representation/application before the concerned investigating officer as well as to DSP, Anand requesting to add offence u/s 307 and as and when such an application is made, the same may be considered by concerned investigating officer and DSP in accordance with law and on merits and if the investigating officer is satisfied, in that case, he may submit appropriate report to the concerned Magistrate for adding offence which can be considered as part of the FIR and the concerned investigating officer to inquire into the same in accordance with law and on merits. However, the said exercise is to be completed at the earliest. However, it is made clear that this Court has not expressed any opinion on merits with respect to the same and an appropriate case being made out and if the concerned investigating officer/DSP is satisfied prima facie that a case u/s 307 of the IPC is made out, it will be open for them to add the said offence which can be considered as part of the FIR and the concerned investigating officer to inquire into the same in accordance with law and on merits.

With this, present Special Criminal Application is disposed of. Direct service is permitted.