R.M. Solanki vs The State of Gujarat and Others

Akil Kureshi, J.—In the above-mentioned group of cases, Special Criminal Application No. 445/2005 and Special Criminal Application were argued as lead matters. It would therefore, be useful to note in brief the background leading to the said petitions. There are other connected and related proceedings also, to which reference will be made at a slightly later stage.

Special Criminal Application No. 445/2005 has been filed by one Bhanubhai Ratilal Parmar stating inter-alia that his younger brother Vinubhai Ratilal Parmar is dealing in land on commission basis. In the course of the business, he had come in contact with various Government officials including the police officers. He came in contact with one R.M. Solanki, Deputy Superintendent of Police, ATS, Ahmedabad who was interested in purchasing land. Some disputes arose between Shri R.M. Solanki and Vinubhai Ratilal Parmar. Shri R.M. Solanki had threatened Vinubhai Ratilal Parmar with dire consequences. He is a highly placed police officer and is posted in ATS. One Hansraj Shekavat was sent by Shri R.M. Solanki on 27.3.2005 with whom Vinubhai had accompanied. Since Vinubhai Ratilal Parmar did not return, the petitioner and other family members started searching for him. They also approached Sabarmati police station and lodged a complaint in this regard which was registered as Janva Jog Entry No. 56/2005. The petitioner apprehended that R.M.Solanki would book his brother for offence which he has not committed. It is further stated that on 30.3.2005 one news item was published stating that in Junagadh, ATS had conducted a raid and form an Indica Car No. GJ-6-JJ-9216, certain quantity of charas has been seized. It is stated that it is this car in which the brother of the petitioner namely Vinubhai Ratilal Parmar had travelled with Hansraj Shekavat. The petitioner apprehended that his brother would be falsely involved by Shri R.M. Solanki who enjoys vast powers. It is therefore, prayed in the said petition that appropriate directions be given to carry out the investigation by any independent officer superior in rank to Shri R.M. Solanki of the offence in which brother of the petitioner Vinubhai Ratilal Parmar is involved in offence of Narcotic by ATS by conducting raid at Junagadh in the guise that Vinubhai Ratilal Parmar is dealing in charas.

Special Criminal Application No. 289/2006 has been filed by Shri R.M. Solanki, Deputy Superintendent of Police. Broadly stated, it is his case that he is a police officer with meritorious service career. He received several rewards and appreciation during his service career. He was recommended for the Presidential award for meritorious service in police by Special Inspector General of Police(Operations),ATS Gujarat State.

3.1 During the post Godhra communal riots of 2001 also he had rendered valuable service and played an impartial role. It is further stated that one Shri Virendra B. Raval, In-charge Deputy Superintendent of Police, Unit No. 3, Anti Terrorist Squad Police Station had received information about Vinubhai Ratilal Parmar being involved in sale of narcotics and of his likelihood of passing through Majedi gate, near railway station, Junagadh in Indica Car bearing Registration No. GJ-6-JJ-9216. Upon information, the said officer had proceeded to intercept the car and carried out the search. It was revealed that said Shri Vinubhai was travelling in the car and charas weighing 975 grams was found in addition to one country made pistol of 7.65 bore with live cartridges.

3.2 It is further contended that brother of Vinubhai Ratilal Parmar had filed a false complaint before the Sabarmati police station being CR.I No. 131/2005 on 28.3.2005 complaining that his brother was missing. It is pointed out that in Special Criminal Application No. 445/2005 filed by brother of Vinubhai Ratilal Parmar, this Court (Coram : C.K. Buch, J.) had by order dated 4.4.2005 transferred the investigation from ATS to independent officer above the rank of Deputy Superintendent of Police and directed the authority to submit the progress report of the investigation.

3.3 It is further contended that the investigation is not being carried out earnestly and independently and attempt is being made to involve the present petitioner mala fide particularly on account of role played by him during the post Godhra riot whereby he had acted impartially which was not liked by some powerful persons at the State level. It is further contended that the entire investigation should be handed over to the CBI.

3.4 The prayer of the petitioner therefore, is that the investigation of C.R. No. III 3 of 2005 registered at ATS Gujarat and C.R. No. II 3 of 2005 registered at ATS Gujarat and CR.I No. 131/2005 registered at Sabarmati police station (the two cases arising out of interception of Indica car in which Vinubhai was allegedly found carrying charas and revolver) be handed over to CBI.

At this stage one may also note some of the other proceedings. Special Criminal Application No. 531/2005 has been filed by one Kanubhai Ratilal Parmar. He is also brother of Vinubhai Ratilal Parmar. On allegations similar to those made in Special Criminal Application No. 445/2005 and apprehending false involvement of Vinubhai Ratilal Parmar in Criminal Case, this petitioner has also prayed for a direction for handing over investigation of C.R. No. I 131/2005 registered with Sabarmati Police Station to the same agency which is investigating C.R. No. II 3 of 2005 and prohibition C.R. No. III 3 of 2005.

For obvious reasons, outcome of Criminal Appeal No. 445/2005 will govern the ultimate result in Special Criminal Application No. 531/2005 also.

4.1 Criminal Misc. Application No. 6714/2005 has been filed by Shri R.M. Solanki praying that order dated 4.4.2005 passed by the Learned Single Judge of this Court in Special Criminal Application No. 445/2005 being an ex-parte interim order be vacated. Final order that may be passed in Special Criminal Application No. 445/2005 shall govern this Criminal Misc. Application also.

4.2 Special Criminal Application No. 1576/2006 has been filed by one Manoj Patel seeking initiation of disciplinary action against respondents Nos. 3 and 4 of the petition who are police officials.

4.3 Special Criminal Application No. 2106/2006 has been filed by one Bavaji Vaidya seeking quashing and setting aside of the impugned complaint bearing C.R. No. I 131 of 2005 registered with Sabarmati police station.

4.4 Criminal Misc. Application No. 10549/2006 has been filed by one Hansraj Shekavat seeking anticipatory bail in connection with C.R. No. I 131/2005.

These proceedings have been tagged along with the main petition. Learned advocates for the parties have not addressed me on these matters. They shall therefore, have to be placed before the appropriate Court after finally disposing of Special Criminal Application Nos. 445/2005, 531/2005 and 289/2006.

Some of the factual aspects involved in the said petitions may be noted at this stage.

As noted, on a tip off that Vinubhai Ratilal Parmar is likely to pass through Junagadh with narcotics in his possession, on 29.3.2005 Shri V.B. Raval, Deputy Superintendent of Police, Unit III, ATS had intercepted the Indica Car No. No. GJ-6-JJ-9216 near Majevadi Gate, Junagadh and claimed to have found 975 grams of charas upon search. Revolver of 7.65 mm bore along with 9 live cartridges was also allegedly seized. Resultantly, two cases were lodged namely complaint bearing C.R. No. III 3 of 2005 registered with ATS Gujarat State and C.R. No. II 3/2005 for seizure of narcotics and fire arm respectively.

7.1 Apparently, Bhanubhai Ratilal Parmar brother of Vinubhai Ratilal Parmar had given a Janva Jog entry before Sabarmati Police Station regarding his brother Vinubhai Ratilal Parmar being missing. On 29.3.2005, Kanubhai another brother of Vinubhai Ratilal Parmar lodged the complaint bearing C.R. No. I-131/2005 before the Sabarmati police station for offenes punishable u/s 365, 294(b) and 114 of the Indian Penal Code against Hansraj Shekavat and unknown persons.

7.2 Investigation in the said three criminal cases were going on at which time Bhanubhai Ratilal Parmar filed Special Criminal Application No. 445/2006 before this Court for transfer of investigation of the case in which Vinubhai Ratilal Parmar was involved by the ATS pursuant to raid carried out at Junagadh and search of Indica Car No. GJ-6-JJ-9216. In the said petition, learned Single Judge of this Court on 4.4.2005 while issuing notice of final disposal by way of interim arrangement directed that the Director General of Police shall see that under direct supervision and monitoring of the highest officer dealing with the A.C.B. cases be entrusted with the complaints and allegations made by the petitioner Bhanubhai Parmar against Mr. R.M. Solanki and such allegations be investigated thoroughly. It was further directed that investigation of the crime in question registered with ATS police station, Ahmedabad is taken from Mr. R.M. Solanki and be handed over to the officer not below the rank of D.S.P. and especially from the department which has no direct link with the A.T.S. operation and activities. Certain other observations and directions were also made in the said order which will be noticed at a later stage.

Another petition being Special Criminal Application No. 531/2005 came to be filed by Kanubhai Ratilal Parmar, another brother of Vinubhai Ratilal Parmar seeking transfer of investigation of C.R. No. I 131/2005 registered at Sabarmati police station.

8.1 It appears that at one stage, the investigation of the case was handed over to DCP(Traffic) Shri Vikas Sahay on 21.4.2005. However, DGP by order dated 28.4.2005 entrusted the investigation of all the three criminal complaints to Shri Subhash G. Trivedi, DCP, Zone-VI, Ahmedabad City.

Shri R.M. Solanki filed two proceedings before this Court. Criminal Misc. Application No. 6742/2005 was filed by him praying for vacating ad interim order dated 4.4.2005 passed in Special Criminal Application No. 445/2005. On 27.6.2005, learned Single Judge of this Court (Coram : Jayant Patel,J.) observed that earlier on 20.6.2005, the Court observed that the investigation that may be carried out shall be subject to further orders which may be passed by the Court. In view of the same, learned Judge directed that Criminal Misc. Application itself will be heard with Special Criminal Application No. 445/2005 and that the matter shall be considered along with Special Criminal Application.

9.1 Shri R.M. Solnaki had also filed SLP No. 3226/2005 before the Hon''ble Supreme Court challenging the ad interim order dated 4.4.2005 passed in Special Criminal Application No. 445/2005. The same however came to be withdrawn on 23.1.2006.

9.2 Shri R.M. Solanki has also filed Special Criminal Application No. 289/2006 in which as noted earlier, it is prayed inter-alia that the investigation of the cases against Vinubhai Parmar be handed over to CBI.

It appears that on 13.2.2006, Shri S.G. Trivedi, investigating the case filed a report before the Court of the Judicial Magistrate First Class, Ahmedabad Rural stating that Shri R.M. Solanki is required to be implicated in the case of kidnapping and filing of a false case under NDPS Act.

To cut the long story short, it may be noted that eventually Shri R.M. Solanki was arrested by the police, was refused regular bail by the Sessions Court. He was however, ultimately granted bail by this Court (Coram: Akshay.H. Mehta, J.) by order dated 20.6.2006 passed in Criminal Misc. Application No. 4985/2006. Apparently, the State of Gujarat has filed SLP before the Hon''ble Supreme Court seeking cancellation of bail granted by High Court to Shri. R.M. Solnaki.

It appears that Shri S.G. Trivedi submitted report to the Special Sessions Court, Junagadh requesting ''B'' Summary in the NDPS case against Shri Vinubhai Ratilal Parmar and same was granted by the Special Sessions Court by order dated 22.3.2007.

From the above, it can be seen that two contrasting versions have been put-forth by two rival parties. On behalf of Shri Vinubhai Ratilal Parmar, two petitions have been filed by his brothers namely Special Criminal Applications Nos. 445/2005 and 531/2005. The stand of the petitioners in the said petition is that Shri Vinubhai Ratilal Parmar has been falsely implicated in the NDPS case and under the Arms Act and in fact he was kidnapped and illegally confined. It is the case of the petitioners that this was so done at the behest of Shri R.M. Solanki who is highly placed officer in the police department who had grudge against Shri Vinubhai Ratilal Parmar.

On the other hand, Shri R.M. Solanki has pleaded before the Court that cases against Shri Vinubhai Ratilal Parmar were genuine; that at one stage investigation revealed involvement of Shri Vinubhai Ratilal Parmar in the said offence; that Shri. R.M. Solanki has no role to play in falsely implicating Shri Vinubhai Ratilal Parmar in the said case and due to mala fide intention and through abuse of powers, it is Shri. R.M. Solanki who is being targeted to destroy his service record.

Basically, though both sides seek transfer of investigation of the criminal cases, there is a vital difference in the essence of the prayers made. As noted this Court by order dated 4.4.2005 passed in Special Criminal Application No. 445/2005 by way of interim measure directed that the investigation of the cases against Shri Vinubhai Ratilal Parmar be transferred from Shri R.M. Solanki and be handed over to a higher officer. Pursuant to this order, certain consequential orders have been passed by DIG. Investigation has also been carried out by Shri S.G. Trivedi. On the other hand, Shri R.M. Solanki has contended that the interim order dated 4.4.2005 be vacated. It is also contended that the investigation carried out by Shri Trivedi is mala fide. Shri R.M. Solanki therefore, has sought the prayer for handing over the investigation to CBI.

Learned Senior advocate Shri Y.N.Oza appearing with Shri P.S. Champaneri for Shri R.M. Solanki however, clarified that the petitioner Shri R.M.Solanki does not insist on investigation by CBI alone and if any independent agency or officer is directed to carry out the investigation, the petitioner would be satisfied.

Before recording the contentions and legal submissions, it would be necessary even if this results into some duplication to take note of some of the orders passed by different Courts in different proceedings having bearing on these petitions.

As noted earlier, in Special Criminal Application No. 445/2005, filed by Shri Bhanubhai Ratilal Parmar, learned Single Judge of this Court on 4.4.2005 taking note of serious allegations made by the petitioner, while issuing notice of final disposal gave directions for transfer of the investigation. The exact directions need to be noted which are as under:

6(i) The Court is of the view that the allegations made against Mr. R.M. Solanki, Dy. S.P., A.T.S., Ahmedabad, are serious in nature and this officer probably is authorized to operate in the entire State. So the Director General of Police, State of Gujarat, shall see that under the direct supervision and monitoring of the highest officer dealing with the A.C.B. cases i.e. Director of A.C.B. be entrusted with the complaints and allegations made by the petitioner-Bhanubhai Parmar against Mr. R.M. Solanki, Dy. S.P., A.T.S., Ahmedabad, are investigated thoroughly.

6(ii) The Director General of Police shall also see that the investigation of the crime in question registered with A.T.S. Police Station, Ahmedabad, is taken from the said Mr. R.M. Solanki and the investigation of the same is handed over to the officer not below the rank of D.S.P. and especially from the department which has no direct link with the A.T.S. operation and activities.

6(iii) If any other or new complaint is registered against Vinodbhai, then such complaint may not be entrusted for investigation either to the said Mr. R.M. Solanki or to any officer who is at present and never in past remained subordinate to Mr. Solanki in the department and the same be handed over to any independent officer not below the rank of Dy.S.P. and senior in cadre to Mr. R.M. Solanki that the Director General of Police may decide.

7(i) If possible, the statements of accused-Vinodbhai Ratilal Parmar, present petitioner and the persons close to these two brothers, be recorded at the earliest by a very responsible officer and the details may be gathered as to the activities done by the accused-Vinodbhai Ratilal Parmar and on behalf of Mr. R.M. Solanki and other senior police or other Government officials.

7(ii) Certain cellular phone numbers also have been referred to in the application and the complaint; and it would be advisable to have the print outs of relevant cellular phones including the cellular phone number and land line telephone number of Mr. R.M. Solanki, if he is having any cellular phone either in personal capacity or in the capacity of a Government officer, also be obtained. The Registry with a view to help the Director General of Police shall tender xerox copy memo of petition along with the annexures and other documents, in two sets. The respondent-State may also enlarge the scope of investigation, if more police officers are found involved.

The Director General of Police shall see that the progress made by his machinery is reported to this Court and such report is made available to the Court at regular intervals. The first progress report be tendered to the Court on 29th April, 2005.

Notice to Mr. R.M. Solanki be sent through the Commissioner of Police, Ahmedabad City, and the others be served through the Court.

18.1 On 20.6.2006, Learned Single Judge of this Court directed that after the investigation is completed affidavit may be filed by the concerned officer investigating the case and such investigation shall be subject to further orders which may be passed by this Court in the petition.

18.2 On 27.6.2005, learned Single Judge of this Court passed an order in Criminal Misc. Application No. 6742/2005 in Special Criminal Application No. 445/2005 filed by Shri R.M. Solanki seeking vacating of interim order dated 4.4.2005 to the effect that earlier the Court had made investigation subject to orders that may be passed by the Court and that therefore, no orders are required to be passed in the application of Shri R.M. Solanki at that stage and that Criminal Misc. Application be heard along with Special Criminal Application No. 445/2005.

As noted earlier, Shri R.M. Solanki also approached the Apex Court challenging the interim order dated 4.4.2005 passed in Special Criminal Application No. 445/2005 by filing S.L.P.(Crime) 3226/2005 which however came to be withdrawn on 23.1.2006 in following manner:

Order.

Heard learned advocate for the parties.

After some arguments, learned Counsel appearing on behalf of the petitioners is permitted to withdraw the petition. The SLP is, accordingly, disposed of.

By order dated 20.6.2006 passed in Criminal Misc. Application No. 4985/2006, Learned Single Judge of this Court granted bail to Shri R.M. Solanki. In the said order, learned Judge took note of an affidavit filed by the officer, Shri S.K. Saikia which is a part of the proceedings in Special Criminal Application No. 445/2005 in which it was stated inter-alia that Shri Vinubhai Ratilal Parmar prima facie was involved in serious cases of NDPS Act and Arms Act. It was noted that this affidavit was not tendered and after the investigation was taken over by Shri S.G. Trivedi another affidavit containing contrary averments was filed. Learned Judge opined that explanation given by learned APP that the earlier affidavit was prepared by Shri R.M. Solanki and Shri Saikia has merely signed on doted lines, is very difficult to accept. It was observed that even if such an explanation is accepted it would show that the officer has behaved in an irresponsible and indifferent manner. On this and other ground, learned Judge was pleased to grant regular bail to Shri R.M. Solanki.

Learned senior advocate Shri Yatin Oza with Shri P.S. Champaneri appeared and argued for Shri R.M. Solanki.

21.1 As already noted, it has been clarified before me that Shri R.M. Solanki does not insist on investigation being handed over to CBI but opposes the investigation carried out by Shri S.G. Trivedi on the various grounds including on the ground of mala fide.

21.2 It was contended that entire investigation was handed over to Shri S.G. Trivedi under an interim order passed by this Court on 4.4.2005 in Special Criminal Application No. 445/2005. Such interim order is subject to final outcome of the petition. In any case, this Court had clarified in the order dated 20.6.2005 passed in Special Criminal Application No. 445/2005 that the investigation that may be carried out shall be subject to further orders which may be passed by the Court. This was reiterated in a subsequent order dated 27.6.2005 passed in Criminal Misc. Application No. 6742/2005. It was therefore, contended that even if substantial investigation may have been carried out, the petitioner cannot be precluded from pointing out that the interim order itself requires to be recalled and Special Criminal Application No. 445/2005 also deserves to be dismissed.

21.3 It is also contended that merely because SLP was filed before the Apex Court and same was withdrawn, would not mean that the petitioner is precluded from opposing Special Criminal Application No. 445/2005.

21.4 Learned advocate Shri Y.N. Oza in addition to taking me through entire material on record placed much stress on affidavits of Shri Saikia Special Inspector General of Police(Operation) ATS Gujarat State. My attention was drawn to a letter dater 8.4.2005 addressed to the Director General of Police in which it is stated inter-alia that to ensure that discharge of the accused in Narcotics case being C.R. No. II 3/2005 and case under the Arms Act being C.R. No. III 3/2005, the movement has been carried out by the brother of the accused and his advocate different places and representation is being made that Shri R.M. Solanki has filed false case. It is stated that this representation is totally false.

21.5 My attention was also invited to the para-wise remarks dated 27.4.2005 submitted by the Government to the Chief Public Prosecutor, Gujarat State in Special Criminal Application No. 445/2005 signed by Shri Saikia which is found at page 193 in Special Criminal Application No. 445/2005. In the same remarks, opposing the petition it is contended inter-alia that the allegations made by the petitioner are not correct. Shri R.M. Solanki is not the final authority in the ATS. Brother of the petitioner is involved in serious crime of NDPS Act and Arms Act. My attention was also invited to letter dated 21.6.2005 written by Shri Saikia to the learned Government Pleader, Gujarat State requesting the learned Government Pleader to return the affidavit sworn by Shri Saikia in Special Criminal Application No. 445/2005 to enable him to include more facts related to the petition.

21.6 My attention was invited to an affidavit dated 28.4.2005 sworn by Shri Saikia in Special Criminal Application No. 445/2005 which is produced by Shri R.M. Solanki at page-33(Annexure-B) in Criminal Misc. Application No. 6742/2005. In the said affidavit, it is inter-alia contended that Shri R.M. Solanki is not the Investigating Officer and in cases against Shri Vinubhai Ratilal Parmar and Shri. B.D. Wadhia is the Investigating Officer. It is also stated that prima facie Shri Vinubhai Ratilal Parmar is involved in serious offence of NDPS Act and Arms Act and he has not been falsely implicated in the said case. It may be noted that the said affidavit of Shri Saikia was never tendered before the Court and withdrawn from the Government Pleader under the above-mentioned letter.

21.7 My attention was also invited to affidavit in reply dated 29.8.2005 filed by Shri Saikia in Special Criminal Application No. 445/2005 at page-96. In the said affidavit, it is stated inter-alia that though initially the affidavit was prepared and sworn on 29.8.2005, the same was not served to other side, nor tendered before the Court since it was brought to the notice of the deponent that transfer of investigation would in no manner harm the Investigating Agency. In fact, it was contended that Shri R.M. Solanki had unauthorisedly obtained copy of earlier affidavit since he was himself posted at ATS.

21.8 It was contended that earlier the Government stand was clear that prima facie offence of NDPS Act and Arms Act was made out against Vinubhai Ratilal Parmar where as later on prayer of brother of Vinubhai Ratilal Parmar for change of investigation was not opposed.

21.9 Additionally, it was also contended that entire investigation was carried out by Shri S.G. Trivedi in mala fide manner with the sole purpose of involving of Shri R.M. Solanki. It was contended that there was rivalry between Manoj Patel and Shri R.M. Solanki. To destroy the otherwise glorious and blemishless service record of Shri R.M. Solanki, he was being falsely targeted. It was also contended that father of Shri S.G.Trivedi, Investigating Office is active in Bajrangdal and had himself contested elections of local assembly. The petitioner had acted in an impartial manner in handling the post Godhra riots which was not appreciated either by the political bosses or by Shri S.G. Trivedi and therefore, he is being falsely involved.

21.10 To contend that withdrawal of the SLP by the petitioner filed for challenging the interim order passed in Special Criminal Application No. 445/2005 would not amount to merger of the order passed by the High Court and it is always open for the parties to seek vacating of the interim order while finally arguing the matter, following decisions are cited:

1) Kunhayammed and Others Vs. State of Kerala and Another,

2) V.M. Salgaocar and Bros. Pvt. Ltd. Vs. Commissioner of Income Tax,

3) Bhel v. Kamal Kar Matar and Ors. reported in, (2001) 1 LLJ 1697 SC

4) Saurashtra Oil Mills Association, Gujarat Vs. State of Gujarat and Another,

5) S. Shanmugavel Nadar Vs. State of Tamil Nadu and Another,

6) State of Madras Vs. Madurai Mills Co., Ltd.,

7) Chandi Prasad and Others Vs. Jagdish Prasad and Others,

21.11 To contend that the interim order passed by this Court would not govern the consideration for final relief at the time of finally disposing of the proceedings and if found necessary effect of the interim order can be reversed by way of granting relief of restitution, the learned Counsel has cited following authorities:

1) South Eastern Coalfields Ltd. Vs. State of M.P. and Others,

2) Tarapore and Co. Vs. V/O Tractors Export, Moscow and Another,

3) AIR 1997 993 (SC)

4) Regional Officer, C.B.S.E. Vs. Ku. Sheena Peethambaran and Others,

5) Guru Nanak Dev University Vs. Parminder Kr. Bansal and another,

6) C.B.S.E. and Another Vs. P. Sunil Kumar and Others,

7) Maharshi Dayanand University Vs. Dr. Anto Joseph and Others,

8) Mata Pher Pandey and Another and Rajinder Singh Vs. State of U.P. and Others,

On the other hand learned advocate Shri A.Y. Kogje for the State stoutly opposed the case of Shri R.M. Solanki. It was contended that Shri R.M.Solanki had no access to the first affidavit of Shri Saikia dated 29.8.2005 which was neither tendered before the Court nor served to the parties. It was contended that para-wise remarks signed by Shri Saikia were prepared by Shri R.M.Soanki himself. On the basis of such para-wise remarks, affidavit was prepared which was never tendered. He relied on the detailed affidavit filed by Mr. Saikia in Special Criminal Application No. 445/2005 at page-96 to explain the earlier stand in the affidavit which was never tendered.

22.1 He further submitted that pursuant to order passed by this Court on 4.4.2005, DGP on 28.4.2005 transferred all the three cases namely that of NDPS Act and under the Arms Act lodged against Shri Vinubhai Ratilal Parmar and of kidnapping lodged by brother of Shri Vinubhai Ratilal Parmar against Shri Hansraj Shekavat to one single Investigating Officer. He submitted that the DGP has power to do so and when it was found that it would be appropriate that one single officer investigates all the three cases, this Court should not interfere in exercise of writ jurisdiction. It was contended that no case of mala fide has been made out. Though vague allegations have been made, there is no supporting material produced. Nothing has been produced to establish the rivalry between Shri R.M.Solanki and Manoj Patel. He submitted that father of Shri S.G. Trivedi has not contested elections and the allegations of Shri R.M. Solanki is not correct.

22.2 It was further contended that Shri R.M. Solanki had filed an affidavit in response to Special Criminal Application No. 445/2005 in which no objection to Investigating Officer was raised. Shri R.M. Solanki had also filed Criminal Misc. Application No. 6742/2005 on 21.6.2005 in which also no objection against Investigating Officer has been taken. It was contended that much belatedly Special Criminal Application No. 289/2006 came to be filed seeking transfer of the investigation that too to the CBI. He submitted that when the investigation was virtually completed without any opposition by Shri R.M. Solanki to the Investigating Officer, at that belated stage, his prayer for recalling the Investigating Officer should not be entertained. It was contended that the petition does not disclose any grounds for change of Investigating Officer. Charge-sheet has already been filed upon completion of the investigation which is based of evidence collected by the Investigating Agency. In absence of any mala fide or colorable exercise of powers, validity of such investigation cannot be doubted. It is lastly contended that Shri R.M. Solanki cannot insist on particular Investigating Officer.

22.3 Learned APP Shri Kogje has relied on the decision of H.N. Rishbud and Inder Singh Vs. The State of Delhi, in which it was observed that a defect or illegality in investigation however, serious, has no direct bearing on the competence or the procedure relating to cognizance or trial.

22.4 Reliance was also placed on the decision of Central Bureau of Investigation and another Vs. Rajesh Gandhi and another, wherein it is observed that accused cannot have a say in who should investigate the offence he is charged with. The decision as to agency which should investigate does not attract principles of natural justice.

Shri Brahmbhatt appearing for the petitioner in Special Criminal Application No. 445/2005 and 531/2005, submitted that the petitions are required to be allowed. Shri Vinubhai Ratilal Parmar was being falsely implicated. Even before his car was intercepted, the petitioner had lodged Janva Jog entry with the police station since Shri Vinubhai Ratilal Parmar was missing. Shri Brahmbhatt also placed reliance on several authorities however, since I find that much of the controversy is purely factual in nature, I do not find it necessary to refer to these authorities.

It may however, be noted that in a recent decision in the case of Divine Retreat Centre v. State of Kerala reported in 2008 AIR SCW 1793, the Apex Court summed up the on the nature of power of the High Court u/s 482 of the Criminal Procedure Code to transfer investigation midstream in the following manner:

The sum and substance of the above deliberation and analysis of the law cited leads us to an irresistible conclusion that the investigation of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions under Chapter XII of the Code. However, we may hasten to add that unfettered discretion does not mean any unaccountable or unlimited discretion and act according to one''s own choice. The power to investigate must be exercised strictly on the condition of which that power is granted by the Code itself.

In our view, the High Court in exercise of its inherent jurisdiction cannot change the Investigating Officer in the midstream and appoint any agency of its own choice to investigate into a crime on whatsoever basis and more particularly on the basis of complaints or anonymous petitions addressed to a named Judge. Such communications cannot be converted into suo motu proceedings for setting the law in motion. Neither the accused nor the complainant or informant are entitled to choose their own investigating agency to investigate a crime in which they may be interested.

It is altogether a different matter that the High Court in exercise of its powers under Article 226 of the Constitution of India can always issue appropriate directions at the instance of an aggrieved person if the High Court is convinced that the power of investigation has been exercised by an Investigation Officer mala fide. That power is to be exercised in rarest of the rare case where a clear case of abuse of power and non-compliance with the provisions falling under Chapter XII of the Code is clearly made out requiring the interference of the High Court. But even in such cases, the High Court cannot direct the police as to how the investigation is to be conducted but an always insist for the observance of process as provided for in the Code.

On the basis of above detailed submissions made before me, I have examined the petitions.

As noted, the investigation of the cases filed under the Narcotics Act and under the Arms Act against Vinubhai Ratilal Parmar came to be transferred under the order dated 4.4.2005 passed by this Court in Special Criminal Application No. 445/2005. Though this Court''s order covered the above-mentioned two cases, the DGP transferred the investigation of the third case filed by the brother of Shri Vinubhai Ratilal Parmar filed against Shri Hansraj Shekavat for kidnapping before the Sabarmati police station and handed over the investigation of all the three cases to one single Investigating Officer namely Shri Subhash Trivedi by order dated 28.4.2005.

Learned Senior advocate Shri Yatin Oza is justified in contending that simply because Shri R.M. Solanki had earlier approached the Hon''ble Supreme Court against the interim order passed in Special Criminal Application No. 445/2005 and preferred Special Leave Petition, the prayers of Shri R.M. Solanki in the present proceedings should not be turned down. Primarily, SLP was against the interim order and same was withdrawn and not decided on merits.

It is true that order dated 4.4.2005 was ad interim order and it was further made clear by this Court that investigation shall be subject to further and final order that may be passed in Special Criminal Application No. 445/2005. In that view of the matter, it is open to Shri R.M. Solanki to contend that this Court while finally disposing of Special Criminal Application No. 445/2005 and other matters, can recall the interim order and all steps taken pursuant thereto would stand nullified.

Certain facts however, cannot be lost sight of. On one hand on behalf of Shri Vinubhai Ratilal Parmar, it is strongly contended that he is being falsely implicated in serious criminal cases by Shri R.M. Solanki on account of certain disputes between the two. On the other hand, it is being projected by Shri R.M. Solanki that he is being falsely involved in the criminal case to destroy his service record. This Court considering the sensitive nature of allegations made in Special Criminal Application No. 445/2005 and in particular considering that Shri R.M. Solanki himself was holding a senior position in ATS, by way of interim measure directed transfer of investigation to a senior officer. This order was carried out by DGP and not only the two cases filed against Vinubhai Ratilal Parmar, but the third case filed against Shri Hansraj Shekavat and unknown persons was also transferred to the same Investigating Officer. The entire investigation is now completed and in the case against Vinubhai Ratilal Parmar, ''B'' Summary was sought and also granted by the Competent Court. Against Shri R.M. Solanki, charge-sheet has already been filed in the kidnapping case.

The question is at this stage should the entire interim order be recalled and should the investigation be nullified. This can be done in my view under extraordinary circumstances only when it is pointed out that entire investigation was carried out mala fide and/or in colourful exercise of powers.

The entire controversy shall have to be judged on the basis of avements made on record. Though orally several submissions has been made, in the Special Criminal Application No. 289/2006 filed by Shri R.M. Solanki following main averments have been made.

31.1 It is contended that the service record of the petitioner is unblemished. He has received several appreciation letters. He was also recommended for presidential award. To spoil the service record of the petitioner, he is being falsely implicated in the criminal case. It is also contended that the petitioner had played impartial role in handling post Godhra communal riots which also is the reason for his false involvement. Specifically it is contended that one Virendra B. Raval who was senior to the petitioner in the police department who was superseded and the petitioner was promoted ahead of him since then Shri Virendra B. Raval carries a grudge against the petitioner. Shri S.G. Trivedi the Investigating Officer being a relative of Shri Virendra B. Raval, is carrying of the investigation as per his whims and desires. It is also contended that the investigation carried out suffers from improprieties and irregularities.

31.1.1 With respect to the averments of false implication on account of reasons noted in the preceding sub-para, there is nothing on record to sustain such allegations. Shri Trivedi has filed an affidavit in reply in Special Criminal Application No. 289/2006 on 21.2.2006 in which it is specifically stated that allegations regarding relations of Shri Virendra Raval and Shri Trivedi, are not true and they are not related in any way. In the affidavit it is also stated that though earlier investigation was to be entrusted to Shri Vikash Sahay, he had already applied for earned leave on 15.4.2005 for period between 8.5.2005 to 29.5.2005. As the petition was pending before the High Court and progress was also to be reported it was found necessary to expedite the investigation and that is how Shri Trivedi was entrusted with the said investigation. Thus allegations of Shri Raval being relative of Shri Trivedi are denied through affidavit sworn by Shri Trivedi. Nothing has been produced on record to further these allegations. Additionally, I also find that except for making averments that to tarnish the blemishless service record of the petitioner and to punish him for his impartial role of post Godhra riot is being falsely implicated in the offence, nothing has been produced on record to establish these allegations. It may be noted that though orally submitted before me that father of Shri S.G. Trivedi is active in politics and contested in elections, such averments are not made in Special Criminal Application No. 289/2006 filed by Shri R.M. Solanki. Though allegations are made regarding procedural improprieties, nothing specifically has been pointed out in this regard.

31.2 Much stress has been placed on two affidavits of Shri Saikia. It may be recalled that earlier affidavit sworn on 28.4.2005 was never tendered on record nor served on other side. The petitioner however, produced a copy thereof. Though it is contended by the State that the petitioner was not supplied copy and he has produced such copy unauthorizedly, in my view this would only be bagging the question.

31.2.1 It is true that in the earlier affidavit dated 28.4.2005 sworn by Shri Saikia, it was suggested that there is prima facie evidence against Shri Vinubhai Parmar. However, this fact was never taken on record. It is explained by the State as well as by Shri Saikia in his affidavit filed before the Court that Shri R.M. Solanki himself had prepared the para-wise remarks on the basis of which such affidavit was drafted. Apart from this, fact remains that Shri Saikia''s affidavit was never tendered to the Court. Subsequently, if investigation has been carried out and some material found to proceed against Shri R.M. Solanki, only because at one stage Shri Saikia carried belief that there was prima facie evidence against Shri Vinubhai Parmar would not mean that subsequent investigation should be discarded. It is true that learned Single Judge of this Court (Coram : A.H. Mehta, J.) made certain observations and remarks regarding the affidavit of Shri Saikia as under:

Of course, the explanation is given by learned A.P.P., that earlier affidavit was prepared by the applicant and Mr. Saikia had merely signed on the dotted lines. It is very difficult to accept this explanation. Even if it is accepted, it shows in how irresponsible and indifferent manner the highest officer of the ATS has behaved. Such attitude is required to be deprecated. Both the affidavits have been sworn by the said Officer namely Mr. Saikia before the authority who is empowered to administer oath under the Oaths Act and both these affidavits were meant to be produced before the Court in the judicial proceedings. Such act of Mr. Saikia may expose him to prosecution under the provisions of Chapter XXI of the Penal Code, which provides for false evidence and offences against public justice. However, since the matter is under scrutiny before the competent Court it is not fair on my part to make any further comment on this. Suffice it to say that in view of the earlier affidavit of Mr. Saikia even for the present there are two versions on the record with regard to veracity of the case filed against Vinubhai and consequently veracity with of the case filed against the present applicant.

It may however, be recalled that said observations were made in the bail application filed by Shri R.M. Solanki. The Court was conscious about pendency of the present proceedings and therefore, did not conclude this issue. Suffice it to say even if explanation of Mr. Saikia is viewed as exposing, ''his irresponsible and indifferent manner'' as observed by learned Judge, same does not necessarily mean that investigation carried out by Shri Trivedi suffers from mala fides.

31.3 From the above, it can be seen that Shri R.M. Solanki has not made out any case for recalling investigation already carried out and for wiping out the effect of interim order which has operated out. Even otherwise, I do not find that the investigation carried out by the Investigating Officer is shown to be otherwise faulty or misdirected. Since the trial is yet to commence, not to adversely affect any side or to cause prejudice to any of the parties, I refrain from making any further observations in this regard. Suffice it to say no case for quashing the investigation is made out. It is true that this Court in the interim order dated 4.4.2005 had referred to the two cases filed against Shri Vinubhai Parmar under the NDPS Act as well as Arms Act for transfer of investigation and there was no direction for change of investigating agency with respect to the complaint filed before Sabarmati police station by brother of Shri Vinubhai Parmar for kidnapping against Hansraj Shekavat and unknown persons. However, DGP who otherwise has powers to transfer the investigation finding that three cases having close connection, if decided to transfer the third case also to the same investigation officer, I see no procedural impropriety or legal defect in such an order.

Before concluding, it may be recalled that in the order dated 20.6.2005 passed by this Court in Special Criminal Application No. 445/2005,it was provided that investigation shall be subject to further order that may be passed. In this view of the matter, it was not appropriate on part of the Investigating Agency to submit the charge-sheet without permission of the Court. Though no such condition was imposed by the Court at any stage in these proceedings, however, when investigation itself was made subject to further orders that may be passed, it was appropriate that before filing the charge-sheet, the Court should have been sounded. However, this at best is only a case of impropriety and not of material illegality and at any rate the investigation solely on this ground cannot be held to have been vitiated.

Insofar as Special Criminal Application No. 445/2005 is concerned, by virtue of interim order dated 4.4.2005 and subsequent change of Investigating Officer and completion of investigation and in view of the fact that I do not find any reason to recall the interim order or to quash the investigation carried out pursuant thereto, the prayers made therein stand virtually granted.

With respect to Special Criminal Application No. 531/2005 also since investigation of the third case filed before Sabarmati police station by brother of Vinubhai Parmar also having been entrusted to Shri Trivedi by DGP without any orders from this Court, the prayers made therein do not survive.

In view of the orders that I propose to pass, Criminal Misc. Application No. 6742/2006 in Special Criminal Application No. 445/2005 would not survive.

Since learned advocates for the parties had addressed the Court only with respect to the said proceedings, remaining matters which are part of this group need to be placed before appropriate Court for further hearing.

In the result, following order is passed:

Special Criminal Application No. 289/2006 is dismissed.

Special Criminal Application No. 445/2005 stands allowed by making interim order dated 4.4.2005 absolute and final.

Special Criminal Application No. 531/2005 in view of completion of investigation by another agency has become infructuous and disposed of accordingly.

Criminal Misc. Application No. 10549/2006, Special Criminal Application No. 2106/2006 and Special Criminal Application No. 1576/2006 be placed before appropriate Court for hearing.

In view of order passed in Special Criminal Application Nos. 289/2006, 445/2005 and 531/2005, Criminal Misc. Application No. 6742/2005 does not survive.

With these directions, Special Criminal Applications Nos. 289/2006, 445/2005 and 531/2005 and Criminal Misc. Application No. 6742/2005 are disposed of.