SCR.A/982/2007 1/81 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 982 of 2007 With CRIMINAL MISC.APPLICATION No. 6842 of 2007 With SPECIAL CRIMINAL APPLICATION No. 983 of 2007 With CRIMINAL MISC.APPLICATION No. 6846 of 2007 With SPECIAL CRIMINAL APPLICATION No. 974 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= AMIT VISHNUPRASAD GAJJAR - Applicant(s) Versus STATE OF GUJARAT & 9 - Respondent(s) ========================================================= Appearance : MR MANOJ N POPAT for Applicant(s) : 1, MR RC KODEKAR, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, RULE SERVED BY DS for Respondent(s) : 2 - 7, 9, MR MANISH J PATEL for Respondent(s) : 4, MS AMEE YAJNIK for Respondent(s) : 5 - 6. MR BHUNESH C RUPERA for Respondent(s) : 8, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 09/07/2007 SCR.A/982/2007 2/81 JUDGMENT COMMON ORAL JUDGMENT 1. As common question of law and facts arise in this group of petitions / applications and they are arising out of the common judgment and order passed by the learned Additional City Sessions Judge, Court No.10, Ahmedabad passed in Criminal Revision Application No.176 of 2007, this group of petitions / applications are being disposed of by this common judgment and order. 2. Special Criminal Application No.982 of 2007 is filed by the applicant – original accused No.3 challenging the judgment and order passed by the learned Additional City Sessions Judge, Court No.10, Ahmedabad dated 30th April, 2007 passed in Criminal Revision Application No.176 of 2007 in allowing the said Criminal Revision Application partly by which the learned Additional City Sessions Judge has remanded the applicant – original accused No.3 for 3 days police custody. SCR.A/982/2007 3/81 JUDGMENT Special Criminal Application No. 983 of 2007 is filed by the applicant – original accused No. 1 challenging the judgment and order passed by the learned Additional City Sessions Judge, Court No. 10, Ahmedabad dated 30th April, 2007 passed in Criminal Revision Application No.176 of 2007 by which the learned Judge has directed that he should remain present before the Investigating Officer from Morning 9.00 AM to Evening 6.00 PM for 2 days i.e. on 1.5.2007 and 2.5.2007 for interrogation. Special Criminal Application No. 974/2007 is filed by the applicant – original complainant challenging the judgment and order passed by the learned Additional City Sessions Judge, Court No.10, Ahmedabad dated 30th April, 2007 passed in Criminal Revision Application No. 176 of 2007 in refusing to grant the remand for 7 days and granting 3 days remand only against the orig. accused SCR.A/982/2007 4/81 JUDGMENT No.3. Criminal Misc. Application Nos.6842 of 2007 and 6846 of 2007 are filed by the applicants – original claimants for jointing them as party respondents in Special Criminal Application Nos.982 of 2007 and 983 of 2007 respectively. 3. The facts giving rise to th present Special Criminal Applications and Criminal Misc. Applications as well as Criminal Revision Application, are as under :- 3.1 One Bhavanbhai Nathubhai Desai (hereinafter referred to as “the complainant” for short) had filed complaint on 17.10.2006 in the Court of learned Chief Metropolitan Magistrate, Court No.13, Ahmedabad against the respective petitioners and other accused for the offences punishable under Section 141, 147, 149, 383, 395, 397, 440, 452, SCR.A/982/2007 5/81 JUDGMENT 506(2) and 120(B) of the I.P.C. r.w. Section 25(C) of the Arms Act. In the said complaint it has been averred / alleged as under:- 3.2 There was Natraj Cinema situated on the Ashram Road, Ahmedabad and “Dairy Den” became a tenant of Natraj Cinema and one Shri Harishbhai Fulchandbhai Shah is the owner of the said “Dairy Den.” The complainant is working as Security Officer of Devanshi Enterprise who is looking after security of the said “Dairy Den.” 3.3 He has stated that he was present on his duties at 6 O'clock in the morning on 8.10.2006. At that time accused Nos. 1 to 9 i.e. namely, (1) Yogendra Ratilal Patel, (2) Pragnesh Hariprasad Parikh, (3) Amit Gajjar (4) Saurabh Desai, (5) Ashok Mistry, (6) Arvind Mistry (7) Chetan @ Gai (8) Snehal Hariprasad Parikh (9) Kokilaben Bhanusinhji Desai came with about 30 to 40 persons to the parlour of Dairy Den and two persons SCR.A/982/2007 6/81 JUDGMENT placed a revolver on his forehead and dragged him to the backside of Natraj Cinema towards a temple. They told him that if the complainant made a slightest noise, they would kill him. The accused had started demolishing Ice Cream Parlour of the Company. At that time the complainant informed accused No. 3 Amitbhai Gajjar that let him inform to the persons of the Company. Accused Nos. 1 and 2 informed him to keep mum and did not allow him to telephone. The other person namely Pankajbhai came at about 8 O'clock and he was also confined with the complainant. 3.4 Thereafter, Shri Pankajbhai and the complainant were freed at about 11 O'clock and Shri Pankajbhai and the complainant went to the parlour and saw that the furniture of the parlour, Ice Cream Machine, Freeze, Computer, Cash box and other articles with cash amount of Rs. 40,000/- were looted and damage was done. Thereafter, both of them informed their manager Shri Kaushikbhai. He SCR.A/982/2007 7/81 JUDGMENT immediately reached the parlour. Then he took them to the factory at Kochrab-Paldi. When they reached there, their security officer Bharatsinh told that some unknown persons came with a truck and told that Kaushikbhai had sent them and they threw counter, table, freeze and other articles and ran away with the truck (with all goods). 3.5 Thereafter, the complainant filed complaint in writing on 8.10.2006 to Navrangpura Police Station. The Police Station Officer accepted the same but the police has not taken any cognizance. No investigation was made and an offence was also not registered. The police did not respond properly and therefore the complainant was required to file complaint before the learned Chief Metropolitan Magistrate on 17.10.2006. 3.6 It was further stated therein that all these accused along with 30 to 40 persons SCR.A/982/2007 8/81 JUDGMENT rushed at their parlance. They arranged a pre-planned conspiracy by an unlawful assembly and looted the furniture and cash of parlour and thereby committed an offence. It was further alleged that accused in this case are rich persons and have political influence. They informed the master of the complainant that “you can do nothing to us. Police or Court would not do any damage to us”. In view of the same, the present complaint has been filed with request to assign the complaint to the Crime Branch. 4. The learned Chief Metropolitan Magistrate, Court No. 13, Ahmedabad, after going through the complaint by his order dated 17.10.2006, held that, considering the complaint of the complainant, the accused have committed a serious offence and flouted the orders of the Civil Court and therefore it is necessary to make investigation of the offence. As it is not possible to initiate an inquiry by a Court, it is necessary to send SCR.A/982/2007 9/81 JUDGMENT this complaint to the police so that lawful action can be taken by making just investigation. Considering all these facts and circumstances and also considering an impartial and just police investigation is necessary in this matter, the learned Chief Metropolitan Magistrate passed the following order: “The complaint be sent to P.I. (Senior), Navrangpura, for investigation under Section 156(3) of the Cr.P.C. The P.I. (Senior) himself shall make an inquiry and report to this Court within 5 days”. 5. It was the case on behalf of the complainant that as the accused were rich and influential persons, nothing happened and there was no investigation carried out by the Police Inspector, Navrangpura Police Station, the complainant preferred Special Criminal Application No.299 of 2007 before this Court SCR.A/982/2007 10/81 JUDGMENT on 15.2.2007 for an appropriate order directing the State Government to hand over the investigation of M Case No. 1 of 2006 registered with Navrangpura Police Station to the D.I.G., State of Gujarat or to C.I.D (Crime), City of Ahmedabad or in the alternative to hand it over to the C.B.I., and to make further investigation of the case in accordance with law. In a the said application, the learned Single Judge of this Court (Coram: K.S.Jhaveri, J.) was pleased to pass the following order on 22.3.2007. “In the meantime, CID (Crime), State of Gujarat will carry out investigation, in connection with M. Case No. 1/06 registered with the Navrangpura Police Station and will submit a detailed report thereof before this Court within a period of ninety days from the date of receipt of the writ of this Court. It is clarified that this order is passed by consensus and the parties have not invited reasons. Direct service is SCR.A/982/2007 11/81 JUDGMENT permitted.” 6. Pursuant to the order passed by this Court, the C.I.D. (Crime) took over the investigation and started investigating the complaint and during the course of the investigation, C.I.D. (Crime) thought it fit that custodial interrogation of the petitioners of Special Criminal Application Nos.982 of 2007 and 983 of 2007 has required for 7 days for the purpose of further and complete investigation and therefore, C.I.D. (Crime) filed remand application on 5.4.2007 before the learned Chief Metropolitan Magistrate, Ahmedabad. In the said application, it was further stated that they have filed an application for anticipatory bail before this Court and this Court while granting the anticipatory bail by order dated 8.3.2007 in paragraph – 4 of the said order it was specifically observed that it would open to the Investigating Officer to file an application for remand, if he considers it proper and just, and the concerned Magistrate SCR.A/982/2007 12/81 JUDGMENT would decide it on merits. 7. Pursuant to the alleged order, the CID (Crime) filed application for remand of the accused. It was stated that in this case large amount of goods have been taken away by the accused which have been stated on pages 4 and 5 of the application and large muddamal is required to be recovered. Even the offence has been taken at whose instance, that also has to be considered. It was further stated that after committing the offence, all the accused are absconding and therefore they have decided to investigation particularly in view of the order passed by this Court. In the said application it was stated that when the investigation was carried out all the accused have not given correct information. It was further stated that they have to recover large amount of goods. They have to also inquire as to at whose instance the aforesaid incident dated 8.10.2006 took place. The accused have taken SCR.A/982/2007 13/81 JUDGMENT goods in which vehicle and what is the number of vehicle and where they have hidden the muddamal and thereafter they have to recover the goods which have been stolen by the accused. In view of the same, they have to get the police custody and custodial interrogation of the accused and investigate the offence. It was further stated that after the incident all the accused are absconding and where they have stayed, that is to be inquired. Therefore the present accused, namely, Pragneshbhai Hariprasad Parikh as well as other accused viz. Amitkumar Vishnuprasad Gajjar are required to be interrogated. Hence the CID Crime prayed for 7 days remand of both the accused. 8. The learned Chief Metropolitan Magistrate, Court No.13, Ahmedabad by his order dated 5.4.2007 rejected the said remand application, however, directed that for 3 days from 7.4.2007 to applicant herein – original accused Nos.2 and 3 i.e. SCR.A/982/2007 14/81 JUDGMENT Pragneshbhai Hariprasad Parikh and Amitkumar Vishnuprasad Gajjar, shall remain present before the Investigating Officer at 5.30 PM for interrogation and they will cooperate with the investigation. 9. Being aggrieved and dissatisfied with the aforesaid order dated 5.4.2007 passed by the learned Chief Metropolitan Magistrate, Court No. 13, Ahmedabad in rejecting the application for remand and custodial interrogation and police custody of the accused Nos.2 and 3, the State filed Criminal Revision Application No. 176 of 2007 before the learned Sessions Judge, Ahmedabad. It was the contention on behalf of the State that as the allegations against the accused are very serious, a detail investigation is necessary against the accused and it was the duty of the learned Magistrate to inquire as to whether the offences under Sections 395 and 397 of the Act have taken place or not. It was also contended on behalf of the State SCR.A/982/2007 15/81 JUDGMENT that not granting the remand of the accused is a final order so far as the State / Investigating Officer is Concerned and therefore, the Criminal Revision Application under Section 397 of the Criminal Procedure Code was maintainable. That the learned Additional City Sessions Judge, Court No.10, Ahmedabad by his order dated 30 th April, 2007 partly allowed the said Criminal Revision Application by observing that the lower Court has not considered the allegations for the offences under Sections 395 and 397 of the I.P.C. and the allegations are that the accused have taken goods worth Rs.44 Lacs and they have come with 30 to 40 people who have committed the offence and at whose instance the offence has been committed and the building has been demolished is required to be investigated. The learned Revisional Court also observed that as per the report of the C.I.D. (Crime) some of the accused are arrested and some of the accused are still absconding and ultimately, the learned SCR.A/982/2007 16/81 JUDGMENT Additional City Sessions Judge allowed the said Criminal Revision Application in part by quashing and setting aside the order passed by the learned Chief Metropolitan Magistrate refusing to grant the remand of the accused and directed that the original accused No.2 (applicant of Special Criminal Application No. 983 of 2007) should remain present before the Investigating Officer from Morning 9.00 AM to 6.00 PM on 1.5.2007 and 2.5.2007 for interrogation. The learned Additional City Sessions Judge also granted 2 days remand of accused No.3 (applicant of Special Criminal Application No. 982 of 2007). 10. Being aggrieved and dissatisfied with the order passed by the learned Additional City Sessions Judge, Court No.10, Ahmedabad dated 30th April, 2007 passed in Criminal Revision Application No. 176 of 2007, the petitioners preferred Criminal Revision Application Nos. 236 of 2007 and 237 of 2007, which came up for hearing before the SCR.A/982/2007 17/81 JUDGMENT learned Single Judge of this Court (Coram: K.M.Mehta, J.), who by his order dated 14.5.2007 dismissed the said Criminal Revision Applications by holding that the order granting the remand of the accused is interlocutory order and therefore, the Criminal Revision Applications under Section 397 of the Code against the said order are not maintainable. Under the circumstances, both the accused, Nos.2 and 3 have preferred present Special Criminal Application Nos.982 of 2007 and 983 of 2007 under Article 227 of the Constitution of India challenging the judgment and order passed by the learned Additional City Sessions Judge, Court No.10, Ahmedabad dated 30th April, 2007 passed in Criminal Revision Application No. 176 of 2007. 11. Shri N.D.Nanavati, learned Senior Advocate appearing on behalf of the applicants of Special Criminal Application Nos.982 of 2007 and 983 of 2007 – original SCR.A/982/2007 18/81 JUDGMENT accused Nos.2 and 3 has submitted that against the order passed by the learned Chief Metropolitan Magistrate refusing to grant the remand of the accused, the Criminal Revision Application under Section 397 of the Criminal Procedure Code before the learned Additional City Sessions Judge itself was not maintainable. He has relied upon the decision of the learned Single Judge of this Court rendered in Special Criminal Application No. 1697 of 2005. He has submitted that the learned Additional City Sessions Judge has relied upon the decision of another learned Single Judge of this Court rendered in Criminal Revision Application No. 836 of 2004 in which the another learned Single Judge has taken a view that against the order of granting of the remand of the accused, Criminal Revision Application under Section 397 of the Criminal Procedure Code is not maintainable as the same is a interlocutory order, however, so far as refusing to grant the remand is concerned, it is a final order SCR.A/982/2007 19/81 JUDGMENT so far as State is concerned and therefore, Criminal Revision Application against the said order of refusal to grant the remand is maintainable under Section 397 of the Criminal Procedure Code. Therefore, it is submitted by Shri Nanavati, learned Senior Advocate that as there are two conflicting decisions of this Court, it is requested to refer the matter to the Division Bench. Shri Nanavati, learned Senior Advocate has relied upon the following decisions in support of his above submission and requested to refer the matter of the Division Bench. He has replied upon the decision of the Hon'ble Supreme Court in case of Madras Telephone S/C & S/T Social Welfare Assn. V/s. Anil Kumar And Another reported in (2000) 2 SCC 215. 12. Without prejudice to the aforesaid contentions and request to refer the matter to the Division Bench, Shri Nanavati, learned Senior Advocate has submitted that even SCR.A/982/2007 20/81 JUDGMENT otherwise on merits also, the order refusing to grant the remand of an accused is required to be considered as interlocutory order so far as State is concerned also as both the orders i.e. granting application of remand and to reject the same, both are passed under Section 167 of the Criminal Procedure Code and that it cannot be that for one party it is a final order and for the other party it is an interlocutory order. He has relied upon the decision of the Hon'ble Supreme Court in case of Madhu Limaye V/s. The State of Maharastra reported in (1977) 4 SCC 551, more particularly, paragraph – 17 which is at Page 561. 13. Shri Nanavati, learned Senior Advocate appearing on behalf of the original accused has submitted that even on merits also, the learned Additional City Sessions Judge has committed an error in granting the remand to the accused No.3 for 2 days. It is submitted that the learned Additional City SCR.A/982/2007 21/81 JUDGMENT Sessions Judge has committed an error in quashing and setting aside the order passed by the learned Chief Metropolitan Magistrate in exercise of the powers under Section 397 of the Criminal Procedure Code when the order passed by the learned Chief Metropolitan Magistrate was legal and proper, the learned Revisional Court ought not to have interfered with the same. It is submitted that even on the ground of parity the learned Additional City Sessions Judge ought to have imposed same conditions for accused Nos.2 and 3 i.e. to remain present before the Investigating Officer for interrogation from 9.00 AM to 6.00 PM. He has submitted that even the original accused No.3 against whom 2 days order of remand is passed is also ready and willing to appear and/or remain present before the Investigating Officer for interrogation from 9.00 AM to 6.00 PM like original accused No.2. 14. Shri Nanavati, learned Senior SCR.A/982/2007 22/81 JUDGMENT Advocate has further submitted that even on merits also, there is no justification to ask for the remand of the accused No.3 for custodial interrogation and the police custody. It is submitted by him that on plain reading of the complaint, no case is made out for custodial interrogation / police custody and there are no cogent reasons or grounds for remand. It is submitted by him that the order passed by the learned Additional City Sessions Judge granting remand of the accused No.3 for 2 days is also contrary to the decision of the learned Single Judge of this Court reported in 2002 (1) GLR 215 and therefore, it is requested to allow Special Criminal Application No.982 of 2007. So far as Special Criminal Application No. 983 of 2007 filed by the original accused No.2 is concerned, he has submitted that he will not press for the same. 15. On the other hand, learned advocate appearing on behalf of the original SCR.A/982/2007 23/81 JUDGMENT complainant as well as learned APP have vehemently submitted that the order passed by the learned Single Judge in Special Criminal Application No. 1697 of 2005 taking a view that the order passed by the learned Magistrate to grant the remand can also be said to be an interlocutory order and therefore, the Criminal Revision Application under Section 397 of the Criminal Procedure Code is not maintainable is per-incuriam as the learned Single Judge has not considered the binding decisions of this Court rendered in Criminal Revision Application No. 836 of 2004 and unreported decision of this Court in case of A. Majumdar V/s. State of Gujarat rendered in Criminal Revision Application No. 429 of 2000 and in the case of Harish Dulabhai Patel V/s. State of Gujarat rendered in Criminal Revision Application No.127 of 2001. He has submitted that in all the aforesaid three decisions, the learned Single Judges of this Court have taken a view that against the order granting the remand SCR.A/982/2007 24/81 JUDGMENT Criminal Revision Application at the instance of the accused under Section 397 of the Criminal Procedure Code is not maintainable as the same is a interlocutory order, however, so far as refusing to grant the remand of the accused is a final order so far as the State / Investigating Officer is concerned and therefore, against refusing to grant the remand Criminal Revision Application under Section 397 of the Criminal Procedure Code is maintainable. It is submitted that the learned Single Judge while delivering the decision in Special Criminal Application No. 1697 of 2005 has not considered the aforesaid three binding decisions and/or the said decisions were not brought to his attention and therefore, the decision in Special Criminal Application No. 1697 of 2005 is a decision per- incuriam and therefore, the matter is not required to be referred to the Division Bench. Learned advocate appearing on behalf of the complainant as well as the learned APP have SCR.A/982/2007 25/81 JUDGMENT relied upon the following decisions of the Hon'ble Supreme Court as well as of this Court in support of their above submissions. (1)State of U.P. & Another V/s. Synthetics & Chemicals Ltd & Another reported in 1991 (4) SCC 139. (2)State of A.P. & Others V/s. Raja Shri V.S.K. Krishna Yachandra Bahadur Varu Rajah of Venkatagiri & Others reported in 2002 (4) SCC 660. (3)Her Highness Shantadevi Pratapsinh Rao Gaekwad V/s. Savjibhai H. Patel & Ors. reported in 1998 (2) GLR 1521. (4)Jaisinh Jodhabhai Vaisya & Grofed Employees Union V/s. Laxmanbhai Arshibhai Zala reported in 2001(2) GLH 68. 16. It is also further submitted on behalf of the complainant as well as the State that even the decision of the learned Single Judge rendered in Special Criminal SCR.A/982/2007 26/81 JUDGMENT Application No. 1697 of 2005 taking contrary view is based on the concession given by the learned APP. It is submitted that disposal on the point of concession does not amount to declaration of law. They have relied upon the following decisions in support of their above submissions. (1)Director of Settlements, A.P. & Others V/s. M.R. Apparao & Another reported in (2002) 4 SCC 638. (2)Kulwant Kaur & Others V/s. Gurdial Singh Mann (Dead) By Lrs. & Others. reported in (2001) 4 SCC 262. 17. It is further submitted that even on merits also the judgment and order passed by the learned Additional City Sessions Judge in granting the remand of the accused No.3 for 2 days is not required to be interfered as the same is just and proper. It is submitted