Gujarat High Court Case Information System Print SCR.[CASE NUMBER] 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 272 of 2010 [ENTITY] - P S I - Applicant(s) Versus [ENTITY] & 1 - Respondent(s) Appearance : [ENTITY] for Applicant(s) : 1, MR [ENTITY]. PUBLIC PROSECUTOR for Respondent(s) : 1, MR [ENTITY] for Respondent(s) : 2, CORAM : HONOURABLE MR.JUSTICE [ENTITY] Date : 29/04/2010 ORAL ORDER
Heard learned advocates appearing for the parties.
On 30th March, 2010 after considering the decision of the Apex Court in the case of [PRECEDENT] about applicability of [SECTION] of the [ACT], this Court issued notice and order impugned of learned Magistrate of issuing process qua the petitioner, came to be stayed.
Learned advocate for the petitioner submits that decision is taken by the learned Magistrate of the offence alleged against the petitioner on the ground that alleged violence on the accused during custody was not a part of official duty of the petitioner and, therefore, the above finding attributes the accused for ever and during proceedings of criminal case.
Mr. [ENTITY], learned advocate for respondent No.2 has placed reliance on certain factual aspects about custody of the accused who is treated violently by the police personnels and the certificates dated 8.6.2009 and 9.6.2009 issued by the Medical Officer about the injury noticed by the doctors and submitted that the above fact will reveal that the accused in custody himself had not inflicted any injuries and duty is cast upon the police personnels as to how such injury appeared on the body of the detenue. Learned advocate further relies on the guidelines and directions issued by the Apex Court in the case of [PRECEDENT] and submitted that the subject matter of the case squarely falls in the realm of gross violence on human right and, therefore, when there are concurrent findings of the Court below this Court will not exercise powers under [SECTION] of the [ACT] and under [SECTION] of the [ACT].
In the rejoinder, learned advocate for the petitioner submits that during the period of alleged violence, the detenue was not in custody of the present petitioner and in the application preferred on 8th June, 2009, no allegations were levelled against the petitioner herein and, therefore, findings of learned Magistrate qua the petitioner at least that alleged offence is committed by him were not during the course of office duty are ill-founded.
Considering the facts and circumstances of the case and on perusal of the application preferred by detenue and certificates dated 4.6.2009, 8.6.2009 and 9.6.2009 issued by the Medical Officer of the Government Hospital, Deesa and the facts recorded by the learned Magistrate, prima facie, it appears that the detenue was not in custody of petitioner herein and it was handed over only on 8th June, 2009 in the evening and, therefore, Rule. Mr. [ENTITY], learnd APP waives service of rule for Respondent No.1 and Mr. [ENTITY], learned advocate for respondent No.2. Ad-interim granted earlier to continue as interim relief till final disposal of this petition qua the petitioner only.
[[ENTITY], J.] smita