Decided on February 26,2014

Maheshkumar Kantilal Dave Appellant


- (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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