DEVUBEN TEJABHAI DEGDA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) LEAVE to amend. Rule. Mr. Maulik Nanavati, learned APP waives service of Rule on behalf of respondents. With the consent of the learned Advocates appearing on behalf of the respective parties, the petition is taken up for final hearing today.

(2.) BY way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for an appropriate order for lodging FIR against accused persons in pursuance of the application dated 07. 11. 2003 and direct CID (Crimes), State of Gujarat to investigate into the said matter. It is further prayed that till CID (Crimes) investigates the said FIR with respect to death of son of the applicant " Maheshbhai who died in the police lockup at Jetpur City Police Station and cause of death is consuming poison, stay further proceedings of Criminal Case No. 1039 of 2004 pending in the Court of learned JMFC, Jetpur in the interest of justice.

(3.) FEW facts necessary for determination of the present application in nutshell are as under : on 17. 10. 2003, the complainant- Sabir Bavasha Fakir lodged FIR being C. R. No. II-3213 of 2003 at Jetpur Police Station against the son of the applicant viz. Mahesh Teja Degda for the offences under sections 323, 504, 506 (2) of the IPC and under Section 37 (1) and 135 of the Bombay Police Act. It is the case on behalf of the applicant that in connection with the said FIR, on 20. 10. 2003 at about 1. 00 p. m. to 2. 00 p. m. Police officials namely Raju Dangar, Rajbha @ Rajendrainh, Sukhubha, Surubha, Ishwarbhai, Najruddin and Mustufa came at the house of the applicant in police van. They took her son forcibly in van and he was kept in police lockup at Jetpur City Police Station. It is further case on behalf of the applicant that at the relevant time one Khimji Shiva Bharai was the Police Inspector. When said Mahesbhai- son of the applicant was in custody of Jetpur City Police Station, on 20. 10. 2003, he died in police custody as he was given poison by police personnel. It is the case on behalf of the applicant that inspite of the fact that said Mahesh son of the applicant has died in police custody, instead of immediately informing converted Magistrate to initiate Magisterial Inquiry, with a view to divert the case, police falsely registered complaint being C. R. No. I-142 of 2003 against the applicant, her daughter " Kiraben, her son Mahesh Teja Degda and one unknown person for the offences under Sections 309, 120-B, 109, 35 and 114 of the Indian Penal Code alleging inter-alia that accused hatched conspiracy and with a view to fit the PI Bharia, Maheshbhai consumed poison when he was in police custody and said poison was given to Maheshbhai by his mother Devubhen, his sister " Kiraben and on unknown lady. Thus death of son of the applicant was custodial death and with a view to save their skin, the police had filed false complaint against the deceased, his mother and sister with highly improbable story that the deceased committed suicide and poison was given by his mother and sister when he was in custody and as such considering the fact that it was a case of custodial death, Magisterial inqury was required to be conduced and no steps were taken for Magisterial inquiry and/or informing Magistrate as required under Criminal Procedure Code. That thereafter, the applicant immediately after the said incident on 07. 11. 2003 made complaint to DSP ventilating her grief of custodial death of her son and to lodge FIR against accused persons stating therein and inspite of that neither the said application is registered as complaint nor any further investigation for inquiry has been conducted by the DSP. Looking to the allegations in the said complaint, the applicant has preferred the present petition under Article 226 of the Constitution of India for an appropriate order directing to register complaint on the basis of application dated 07. 11. 2003 and to direct the CID (Crimes) to investigate and inquire into the same.