MAHESHKUMAR KANTILAL DAVE Vs. STATE OF GUJARAT
HIGH COURT OF GUJARAT
Maheshkumar Kantilal Dave
STATE OF GUJARAT
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(1.) MR .Ramanbhai Purshottamdas Patel, Police
Inspector, Aagathala Police Station, who is the
Investigator has filed an affidavit sworn on
04.02.2014. He was sought to be joined as party in his personal capacity, and therefore, necessary order
was passed and the rule was made returnable on
05.03.2014. However, the newly added respondent appeared today at 2:30 p.m. and waived the service of
rule. The other respondents also waived the service
of rule, and thus, instead of 05.03.2014, the matter
has been taken up today.
(2.) THE petition is preferred with a prayer to transfer the investigation of FIR being ICR No.85 of
2013 registered with Aagthala Police Station, Dist: Banaskantha to any other independent agency
unconnected with the present investigating agency.
Such a prayer is made on various grounds including the
fact that, despite the petitioner having disclosed the
identity of the assailants in the FIR itself, they are
not proceeded against. The petitioner has placed on
record the affidavit of various eyewitnesses, but
their statements have not been recorded and, it
appears that the chargesheet came to be filed during
pendency of this petition in haste and hurry only
against original accused No.1. So far as other accused
are concerned, the investigator has made a statement
on oath in his affidavit that two eyewitnesses
exonerated accused Nos.2 and 3 by pleading their
absence during the incident in question, though
earlier they stated to have seen the incident. In the
affidavit, it was further stated that location of the
mobile phone of the brother of the complainant was
found at a distance of six kilometers from the place
of the incident. The investigator has further
attributed the brother of the complainant with a
threat to the investigator to implicate the accused.
It is a settled legal position that FIR alleging cognizable offence must be investigated and, if the offence is made out, appropriate report under Section 173 of the Code of Criminal Procedure (for short Cr.PC) must be filed. In the instant case, the petitioner cited himself as one of the eyewitnesses; inasmuch as, he identified the assailants by names and with weapons in the complaint itself and yet the investigator filed the report under Section 173 of the Cr.PC only against accused no.1 with the plea aforesaid in the petition.
It appears that following defects exist in investigation inducing this Court to pass an order of
transfer of investigation from respondent No.4 to the
Local Crime Branch, Palanpur.
1. Despite complainant himself being an eye witness to the incident and having identified the assailants by names and with weapons in the FIR, such statements were ignored and no chargesheet came to be filed against accused Nos.2 and 3. 2. Despite there being various statements of the eyewitnesses in the form of the affidavit on record to the knowledge of the investigator, they have been ignored and the chargesheet as above is filed only against accused No.1.
3. Despite there being previous statements of two eyewitnesses, who according to the affidavit filed by the investigator subsequently retracted it, the investigator himself decided to discard such previous statements without referring the matter to the competent Court. He also appreciated the evidence i.e. doubted the presence of complainant's brother at the scene of offence only on the basis of his mobile location. 4. The chargesheet came to be filed against accused No.1 in haste and hurry without filing action taken report as required by this Court by an order dated 23/12/2013, subsequent to that order. Possibility of the investigator showing such undue haste for the reasons not germane to law cannot be ruled out.
(3.) IN above view of the matter, it is difficult to inspire the confidence in the investigation so far
conducted by respondent No.4 herein.;
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