SCR.A/1469/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 1469 of 2008 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 ? ========================================================= MANJULABEN W/O VELABHAI VASABHAI CHAUHAN - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR ABHAYKUMAR P SHAH for Applicant(s) : 1, MR. MAULIK NANAVATI ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, None for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 29/09/2008 ORAL JUDGMENT 1. Rule. Shri Maulik Nanavati, learned A.P.P. waives service of notice of rule on behalf of the SCR.A/1469/2008 2/6 JUDGMENT respondent State. With the consent of the parties, application is taken up for final hearing today. 2. Present petition under Article 226 of the Constitution of India r/w Section 482 of the Code of Criminal Procedure is filed by the petitioner original complainant/victim/ prosecutrix Manjulaben w/o Velabhai Vasabhai Chauhan for an appropriate writ, direction and / or order to transfer the investigation of F.I.R. being C.R. No. I-66 of 2008 registered with Deodar Police Station filed against the accused persons for the offences punishable under Sections 376, 504, 506(2) and 114 of IPC and under Sections 3, 2 and 5 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, to any other independent investigating agency and / or other senior Police Inspector of another police station under the supervision of District Superintendent of Police, Palanpur. 3. A grievance which is voiced in the present petition that inspite of the commission of the serious offence of rape by the accused persons and SCR.A/1469/2008 3/6 JUDGMENT though the complaint has been filed by the petitioner-victim/ prosecutrix, there is no proper investigation against the accused persons. 3. This Court passed the following order on 12.9.2008. Shri Kodekar, learned APP has submitted that the main accused is absconding and is still not arrested. Though on preliminary investigation prima-facie case is found at this stage also and even the proceedings under Section 70 of the Cr.P.C., are also contemplated. S.O. to 19.9.2008. The I.O. and Dy.S.P., himself take concrete steps to arrest the accused person, if they are of the opinion that a prima facie case is made out against the accused. That, thereafter the original accused preferred Special Criminal Application No. 1853 of 2008 before this Court for an appropriate writ, direction and / or order directing the respondents to investigate the offence lodged vide C.R. No. I-66 of 2008 registered with Deodar Police Station through high ranking office of the rank of Superintendent of Police. It was also further prayed to direct the Investigating Officer of the aforesaid C. R. No. I- 66 of 2008 not to arrest the petitioner. Considering SCR.A/1469/2008 4/6 JUDGMENT the fact that the offence alleged is under the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and under the statue the investigation is to be carried out by the Dy. S.P., this Court did not pass any order with respect to the investigation by high ranking officer, however, considering the request of the accused to surrender before the learned Sessions Court, Banaskantha at Palanpur by directing the learned Special Court to decide and dispose of the bail application on the very day. In the mean time, it was reported that the Dy.S.P., who investigated the aforesaid FIR, opined that original accused is not to be arrested and the same was brought to the notice to the Inspector General of Police, State of Gujarat and it is reported that in spite of the fact that Inspector General of Police directed the concerned Dy. S.P., not to produce the said communication before the learned Special Court and not to act upon the same, still the concerned Dy. S.P., through Public Prosecutor presented the same before the learned Special Court, Banaskantha at Palanpur and the original accused came to be SCR.A/1469/2008 5/6 JUDGMENT released on bail, considering the aforesaid report of the Dy. S.P. It is also to be noted that even the State has also preferred application for cancellation of bail granted by the learned Special Court, Banaskantha at Palanpur releasing the original accused on bail, which was granted mainly relied upon the communication of the concerned Dy.S.P., inspite of the clear instruction from the Inspector General of Police that the Dy. S.P., should not act upon the same and the same is pending before this Court. Considering the above, it prima facie appears that the apprehension on the part of the petitioner-victim/ prosecutrix is well founded. Under the circumstances and in the facts and circumstances of the case the investigation of the FIR being C.R. I-No. 66 of 2008 is required to be transferred to another Dy.S.P., and as suggested by the learned advocate for the petitioner as well as learned A.P.P. the same can be handed over Dy.S.P., Palanpur. 4. Under the circumstances and for the reasons stated above and without expressing any further SCR.A/1469/2008 6/6 JUDGMENT opinion on merits, the investigation of complaint being C.R. No. I-66 of 2008 registered with the Deodar Police Station is hereby transferred to Dy.S.P., Palanpur who is directed to investigate the said complaint / FIR at the earliest and to submit appropriate report before the concerned Court. Rule is made absolute. Direct service permitted. (M.R.SHAH, J.) kaushik