Roopsinh Hirajibhai Sadat vs State of Gujarat and Others

M.D. Shah, J.—Special Criminal Application No. 1569 of 2010 is filed by the Petitioner-original complainant against the order dated 2-12-2008 passed in Cri. Misc. Appln. No. 426 of 2008 by the learned Presiding Officer, Fast Track Court No. 4, Sabarkantha, Camp at Idar whereby the application for condonation of delay caused in preferring revision against the order of dismissal of complaint filed by the present Petitioner dated 29-3-2007 passed by the learned Judicial Magistrate (First Class), Bhiloda, below Summary No. 2 of 2005.

Cri. Misc. Appln. No. 4246 of 2008 has been filed by Ajitbhai Ishwarbhai Joshi-the original accused No. 2 while Cri. Misc. Appln. No. 7396 of 2009 has been filed by Sarlaben, W/o Laxmanbhai Rupsinhbhai Sadat-the original accused No. 3 for quashing and setting aside the proceedings of FIR bearing I.C.R. No. 11 of 2007 registered with CID Crime, Gandhinagar Zone Police Station, Gandhinagar.

As all the three matters have arisen out of same incident and as the parties to all the three matters are also the same, all these matters were heard together and are being decided by this common judgment.

The complainant-Roopsinh Hiraji Sadat filed a private complaint before learned Judicial Magistrate (First Class), Bhiloda, on 25-10-2004 against the original accused Nos. 1, 2 and 3 for the offences punishable under Sections 302 and 114 of IPC in connection with the incident which is alleged to have occurred on 21-7-2004 alleging that the original accused No. 3 had illicit relations with the original accused Nos. 1 and 2 and they in collusion with each other committed murder of his son-Laxmanbhai i.e. husband of original accused No. 3. Said complaint was sent by the learned Magistrate by passing an order u/s 156(3) of Code of Criminal Procedure for investigation to Bhiloda Police Station where it was registered as M. Case No. 26 of 2004 for the offences punishable under Sections 302 and 114 of IPC Code. The Investigating Officer at the end of investigation filed ''B'' Summary Report No. 2 of 2004 before the learned Magistrate on 25-1-2005. Thereafter, the learned Magistrate after issuing notice to the original complainant and after affording opportunity of being heard ordered for further investigation by order dated 7-5-2005. Dy. S.P. after carrying out further investigation again submitted B-Summary report before the learned Magistrate which was accepted by the learned Magistrate by order dated 29-3-2007. Thereafter on 19-7-2007, the complainant filed an FIR with CID Crime, Gandhinagar Zone Police Station, Gandhinagar, which was registered as I.C.R. No. 11 of 2007 in connection with the same incident which is alleged to have happened on 21-7-2004. Original accused No. 1 was arrested on 15-2-2008 and thereafter she was released on bail by the competent court. The original complainant preferred Cri. Revision Application on 25-4-2008 along Cri. Misc. Appln. No. 426 of 2008 for condonation of delay caused in preferring said revision before the Addl. District Judge and Presiding Officer, Fast Track Court No. 4, Himatnagar, Camp at Idar. Learned Presiding Officer dismissed the said application for condonation of delay vide order dated 22-12-2008. Against the said order and also against the order dated 29-3-2007 passed by the learned Judicial Magistrate (First Class), Bhiloda, accepting the ''B'' summary report, Spl. Cri. Appln. No. 1569 of 2010 is filed by the original complainant. However, Cri. Misc. Appln. Nos. 7396 of 2009 and 4246 of 2008 are preferred by the original accused Nos. 3 and 2 respectively for quashing of proceedings of I.C.R. No. 11 of 2007 CID Crime, Gandhinagar Zone Police Station.

Heard learned advocate, Mr. Hriday Buch for the original complainant, learned APP, Mr. C.M. Shah for the State, learned advocates, Mr. R.J. Goswami for the original accused No. 3, Mr. Virat G. Popat for the original accused No. 1 Mr. P.R. Abichandani for the original accused No. 2.

It is submitted by learned advocate, Mr. Hriday Buch for the original complainant that the order by the learned Magistrate accepting the ''B'' Summary report was mechanically passed without taking into consideration the objections raised earlier by the complainant and without giving proper opportunity of hearing to the original complainant and hence, is bad in law. According to him, the report submitted by Asstt. Commissioner of Police, Ahmedabad City, expressed opinion only about offence under Atrocity Act and it never stated that no offence whatsoever was made out. It is also submitted that an erroneous conclusion has been arrived at by the learned Judge in holding that as cognizance of grievance has been taken by the CID Crime, Gandhinagar, there was no need to condone the delay. According to him, there was nothing on record except the submission by the advocates of the accused about filing of said FIR and, therefore, learned Judge ought not to have arrived at such a conclusion. It is further submitted that the court below in an application for condonation of delay ought to have seen as to whether there was any sufficient reason for condoning the delay caused in filing the revision or not and since sufficient reason has been given by the complainant, delay ought to have been condoned. It was specifically stated that immediately on coming to know of the order having passed by the learned Judge, the revision has been preferred. It is further submitted that the complainant is an illiterate triable person and because of improper investigation and illegal orders, the investigation carried out by CID Crime is stopped by the contending that it is a second complaint. In this regard, he has relied on a decision of the Hon''ble Apex Court reported in Nirmal Singh Kahlon Vs. State of Punjab and Others, It was ultimately prayed that this Special Criminal Application be allowed and the applications for quashing filed by the accused be dismissed.

On behalf of the original accused, it is submitted that initially a private complaint was lodged before the learned Judicial Magistrate First Class, Bhiloda, by the complainant for the offence punishable under Sections 302 and 34 of IPC pursuant to which, a direction has been issued by the learned Magistrate to investigate into the offence pursuant to which, M. Case No. 26 of 2004 was registered by the concerned Police Station and at the end of investigation, B summary report was submitted before the concerned Court on 6-1-2005. Thereafter, the learned Magistrate vide order dated 7thJuly, 2005 directed the Dy. S.P. to make further investigation as one of the offences being under the provisions of the Schedule Caste & Schedule Tribe (Prevention of Atrocity) Act. Dy. S.P. at the end of investigation submitted the report and the learned Magistrate considering the said report passed an order on 29-3-2007 accepting B summary report. It is further submitted that four months after the acceptance of said B summary report, the complainant had again lodged first information report before the CID Crime, Gandhinagar Zone Police Station registered as C.R. No. 11/2007 for the very same offence. It is therefore submitted that as per the settled principle of law, once the criminal law is set into motion, second FIR for the same offence cannot be permitted. They relied on the decisions of the Hon''ble Apex Court in the cases of Hira Lal and Others Vs. State of U.P. and Others, also Mahesh Chand Vs. B. Janardhan Reddy and Another, submitted that since the investigation carried out at the first instance attained its finality, a second complaint for the same offence would not be permissible.

Considered the submissions made by the learned advocates for the parties and have also gone through the record. It appears that in pursuance of a private complaint filed by the original complainant before learned Judicial Magistrate (First Class), Bhiloda, on 25-10-2004 against the original accused Nos. 1, 2 and 3 for the offences punishable under Sections 302 and 114 of IPC in connection with the incident which is alleged to have occurred on 21-7-2004, the learned Magistrate passed an order u/s 156(3) of Code of Criminal Procedure for investigation to Bhiloda Police Station and at the end of investigation, ''B'' Summary Report No. 2 of 2004 was filed by the Investigating Officer before the learned Magistrate. In pursuance of the said report, further investigation was ordered by the learned Magistrate and again ''B'' summary report was submitted by the Investigating Officer and it was accepted by the learned Magistrate by order dated 29-3-2007. It further appears that in pursuance of representation made by the complainant before the Home Department, the Home Department considering the report of Sub Divisional Magistrate and other papers ordered for further investigation of the case by the CID Crime, Gandhinagar, vide letter dated 11thMarch, 2006. Since the further investigation of the case has been ordered to be carried out by the CID Crime by the State Government, there is no question of the complaint being a first complaint or second complaint. Therefore, the decision relied on by the learned advocate for the original accused in Hiralal Lal (supra) Mahesh Chand (supra) not be applicable to the facts of the present case.

It is pertinent to note that further investigation has been ordered by the learned Magistrate upon issuing notice and after giving sufficient opportunity of hearing to the complainant. However, ''B'' summary report has been submitted at the end of further investigation and the said report has been accepted by the learned Magistrate. Therefore, it cannot be said that said order was mechanically passed and without giving proper opportunity of hearing to the original complainant. In view of the above, the order dated 22-12-2008 passed by the learned Addl. District Judge and Presiding Officer, Fast Track Court No. 4, Himatnagar, Camp at Idar as also order dated 29-3-2007 passed by the learned J.M.F.C., Bhiloda, are legal and proper and they are not required to be interfered with. As stated above, further investigation by the CID crime, Gandhinagar, was ordered by the Home Department in pursuance of the representation made by the complainant after considering the report of Sub-Divisional Magistrate.

Thus, both the Cri. Misc. Application No. 4246 of 2008 filed by Ajitbhai Ishwarbhai Joshi-the original accused No. 2 and Cri. Misc. Application No. 7396 of 2009 filed by Sarlaben, W/o Laxmanbhai Rupsinhbhai Sadat-the original accused No. 3 for quashing and setting aside the proceedings of FIR bearing I.C.R. No. 11 of 2007 registered with CID Crime, Gandhinagar Zone Police Station, Gandhinagar, require to be dismissed. Similarly, Special Criminal Application No. 1569 of 2010 filed by the original complainant against the order dated 22-12-2008 passed by the learned Addl. District Judge and Presiding Officer, Fast Track Court No. 4, Himatnagar, Camp at Idar as well as order dated 29-3-2007 passed by the learned J.M.F.C., Bhiloda, requires to be dismissed.

Thus, Special Criminal Application and the Cri. Misc. Applications are dismissed. Rule is discharged.