IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATIONS No 1302 & 1309 of 1997 For Approval and Signature: Hon'ble MR.JUSTICE N.N.MATHUR ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? Yes 2. To be referred to the Reporter or not? Yes J 3. Whether Their Lordships wish to see the fair copy of the judgement? No 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? No 5. Whether it is to be circulated to the Civil Judge? No -------------------------------------------------------------- I B VYAS P,I. Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: Special Cri.Application No.1302/97 M/S THAKKAR ASSOC. for Petitioner Mr S N Shelat, Addl.Advocate General for the State of Gujarat Mr K S Rathore with Mr V M Joshi for the State of Rajasthan MR Kela for Respondent No. 2 Special Cri. Application No.1309/97 Mr D N Patel, APP for the State of Gujarat Mr K S Rathore with Mr V M Joshi for State of Rajasthan Mr Kela for respondent No.1 -------------------------------------------------------------- CORAM : MR.JUSTICE N.N.MATHUR Date of decision: 04/12/1997 JUDGMENT (COMMON) Two Criminal Misc.Applications being No.6163 and 6164 of 1997 have been filed by the respondent Mohanlal, P.I., police station Kotwali, Pali, Rajasthan under Article 226 (3) of the Constitution of India with a prayer to vacate the ex-parte stay order dated 29.9.1997 whereby the further investigation in FIR Case No.403/96 registered at Kotwali, Pali police station, State of Rajasthan has been stayed. This Court directed to hear these applications as well as the main Special Criminal Applications together. Thus, the main petitions are taken up for final hearing. 2. Special Criminal Application No.1302/97 has been filed by the Shri I B Vyas, P.I. Local Crime Branch (LCB), Palanpur, Mehsana and at present P.I., Civil Defence Office, Kothi Kacheri, Vadodara, seeking following directions: "[A] Your Lordships be pleased to issue appropriate writ, direction or order to transfer the criminal proceedings of FIR Case No.403/96 from Pali Kotwali police station for investigation and trial with C.R. No.216/96 at Palanpur in the interest of justice". Special Criminal Application No.1309/97 has been filed by the State of Gujarat, seeking the following directions: "[A] Your Lordships may be pleased to issue a writ of mandamous or a writ of any other appropriate nature, order or direction, transferring the criminal proceedings of FIR Case No.403/96 from Pali Kotwali police station for investigation and trial with C.R.No.216/96 registered at Palanpur City police station." POINT OF CONTROVERSY 3. The point involved in these petitions pertains to applicability of section 186 of the Criminal Procedure Code, 1973 (for short, 'the Code') in the facts of the case. On scrutiny of both the petitions and section 186 of the Code, it is painfully observed that the State of Gujarat has chosen to approach this Court in its extra-ordinary jurisdiction under Article 226 of the Constitution of India by way of wholly misconceived petitions perhaps only with a view to protect some of the officers against whom there are serious allegations constituting offence under various IPC provisions and NDPS Act. We have burnt our fingers by granting an ex-parte stay order bringing the investigation at an advanced stage to complete halt. Having examined the matter in depth and detail, prima facie, it appears that there was a deep rooted conspiracy for achieving unlawful object. The learned Advocates appearing for the petitioners have not been able to point out if any enquiry or trial is pending in any Court in the State of Gujarat with respect to same offence of F.I.R. case.No.403/96 of Kotwali police station. Section 186 of the Code is concerned itself only to a situation when two or more Courts have taken cognizance of the same offence. The prayer in both these petitions is to transfer the criminal proceedings of C.R. No.403/96 from Kotwali police station, Pali for investigation and trial with C.R. No.216/96 registered at Palanpur City police station. The investigation and trial are two different stages and they do not go together except in certain situations such as further investigation under section 173 (8) of the Code, which is not the case of the petitioners. Be that as it may, there is no prayer for transfer of any enquiry or trial from any Court of Rajasthan to a Court in the State of Gujarat. The prayer is for transfer of criminal proceedings in FIR Case No.403/96 for the purpose of investigation. Therefore, both the petitions are liable to be dismissed on the very ground that the prayer sought are not covered within the ambit of section 186 of the Code. 4. However, since number of contentions have been raised and the facts in detail have been stated by the respective parties, I consider it appropriate to state the facts and deal with the contentions. CONENTIONS (i) In Special Criminal Application No.1309/97 filed by the State of Gujarat, Mr D N Patel, learned APP contended that the Investigating Officer in C.R. No.216/96 has added section 58(2) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'NDPS Act') and investigation in that regard is still in progress, and therefore, the investigation in FIR case No.403/96 of Kotwali police station, Pali for the same offence should be stayed as there cannot be investigation of same offence by two different agencies. It is further submitted that while discharging accused-Sumersingh Rajpurohit on a report filed by the Gujarat Police under section 169 of the Code, the learned Special Judge has applied his mind and that act falls within the purview of enquiry as defined under section 2(g) of the Code. Thus, in view of section 186 (b) of the Code, the complaint filed before the Court of Chief Judicial Magistrate, Pali, be transferred to Palanpur police station. (ii) Mr P M Thakkar, learned Sr.Advocate in Special Criminal Application No.1302/97 appearing for the petitioner Mr I B Vyas, submitted that the investigation of offence under section 58(2) of the NDPS Act is consequence of the final report under section 169 of the Code itself. He further submitted that the Special Judge, Palanpur has taken the cognizance of the offence, which is evident from the fact that the accused Sumersingh was discharged under section 227 of the Code. He has referred to decisions of the Apex Court, reported in AIR 1967 SC 1167 and Full Bench decision of this Court, reported in 7 GLR 130. He has relied upon the decision reported in 1979 Cr.L.J. 226. (iii) Shri S N Shelat, learned Addl.Advocate General appearing for the respondent-State of Gujarat in Special Criminal Application No.1302/97, advancing the contention raised by Mr D N Patel, learned APP in Special Criminal Application No.1309/97, submitted that it is well settled position of law that cognizance is taken of an offence and not of an offender. The word 'cognizance' has not been defined in the Code, but as soon as the Magistrate applied his judicial mind to the offence stated in the complaint or the police report, the cognizance is said to have been taken. He placed reliance on decisions of the Apex Court reported in AIR 1996 SC 204 and AIR 1983 SC 439. He also relied on a case reported in 1982 Cri.L.J. 1264. It is submitted that while disposing the report under section 169 of the Code, the learned Special Judge has applied his judicial mind, and therefore, he deemed to have taken cognizance of the offence under section 58(2). He further submitted that taking cognizance of an offence does not mean taking cognizance of specific penal provisions, but taking cognizance of the allegations constituting the offence. He also submitted that the same offence or the same accused persons are not relevant considerations for attracting the provisions of section 186 of the Code. It is thus, submitted that provisions of section 186 are attracted in the present case and as the filing of the case in the Court of Special Judge in the State of Gujarat is prior in time. Thus, the case pending in the State of Rajasthan should be transferred to the State of Gujarat in accordance with the provisions of section 186 of the Code. (iv) Mr V M Joshi, learned advocate appearing for the State of Rajasthan submits that in C.R. No.216/96 of Kotwali police station, no question of taking cognizance arises as police submitted report under section 169 of the code and the learned Special Judge by order dated 14.5.1996 while accepting the final report, discharged the bail bonds taken on 8.5.1996. It is submitted that there is no question of discharging the accused Sumersingh as no case was found against him and the learned Special Judge only passed the order of discharging the bail bonds. He further submitted that the transfer of investigation is beyond the scope of section 186 of the Code, and therefore, the present petition is wholly misconceived. He placed reliance on cases reported in 1978 Cr.L.J. 1475, 1983 (2) Crimes 416, 1984 Cr.L.J. 1065 and 1991 (2) RLR 310. (v) Mr Kela, learned Advocate appearing for Sumersingh submitted that the present petition is an exhibit of gross abuse of extra-ordinary jurisdiction of the High Court under Article 226 of the constitution of India. He submitted that on a plain reading of section 186 would show that by no stretch of imagination, the provision can be attracted to the facts of the present case. He also submitted that the investigation under section 58 (2) at Palanpur is being investigated by none else but by the persons who are accused in C.R. No.403/96. He also submitted that the case under section 58 (2) of the NDPS Act may at the most be a defence of accused in F.I.R. Case No.403/96 Palanpur which shall be considered during the trial pending in the Court of Special Judge at Jodhpur at an appropriate stage. 5. Before I proceed to deal with each contentions, it is necessary to narrate the facts pertaining to FIR Case No.403/96 and C.R. No.216/96 to which the learned Advocates for the respective parties have taken me through in great detail and raised various contentions on that basis. C.R. No.216/96 of Palanpur police Station, State of Gujarat for offence under section 17 of the NDPS Act. 6. The aforesaid C.R. case has been registered on a telephonic message on 30.4.1996 from police control room, Palanpur which contains the message that one unknown person from Pali (Rajasthan) has given information that one Sumersingh C Rajpurohit deals in opium. He is staying in Hotel Lajwanti at Palanpur along with the opium weighing 5 kgs., delivery of the opium is to be given in Palanpur. On receiving this information, the police visited Hotel Lajwanti at Palanpur. Thereupon the hotel owner verified the entries of the register regarding the person holding the guest house. It was disclosed that as per entry no.604 of the register, one Sumersingh Rajpurohit, resident of Vardhman Market, Pali had check in room No.305 at 21.40 hours on 29.4.1996. The said room was given to him by his father Shantilal. Thereafter the police team went to room No.305 and opened the same. No person was found therein. It was learnt that on receiving the information about the raid, the occupant of the room had run away. Thereafter, search of the room was made in presence of Panchas. They found opium weighing 1 kg. 15 grms. The P.I. Mr Vyas, under the instructions of Mr Sanjiv Bhatt, D.S.P., Palanpur went to Pali along with P.S.I., Rajendra Yagnik and other police constables. The accused Sumersingh was arrested in the intervening night of 2.5.1996 and 3.5.1996 from his house at Pali and brought to Palanpur. As per the information, he had come to Palanpur with 5 Kgs. of opium and 1 kg. 15 grms. was recovered from room No.305 of Hotel Lajwanti. Further information was to be collected from the accused as to where he sold the remaining 4 kgs. of opium. Sumersingh was produced before the learned Chief Judicial Magistrate, Palanpur on 4.5.1996 and prayed for grant of remand for 14 days. When Sumersingh was produced before the Chief Judicial Magistrate, the learned Advocate on behalf of Sumersingh, submitted that the accused is an Advocate practising at Pali in the State of Rajasthan and he has been falsely arrested at the instance of the owner of the shop which is in the possession of Sumersingh. It was also pointed out that a Civil Suit is going on between the owner of the shop and Sumersingh. It was also pointed out that the police is in collusion with the owner of the shop. However, the learned Magistrate granted remand for a period of seven days and directed that the accused shall be produced at 15.30 hours on 10.5.1996 before the Special Judge. 5th May was a holiday and on 6th an identification parade was arranged before the Executive Magistrate, Palanpur at 16.30 hours. Sumersingh was not identified. The witnesses stated that the accused is not the person who check in room No.305 on 29th April, 1996. They had not seen the arrested person-Sumersingh earlier. In view of this, on the same day, police submitted a report before the Special Judge, Palanpur under section 169 of the Code and prayed that Sumersingh be released. Mr R P Vaghela, Addl.Sessions Judge did not pass any order thereon on 6th May, 1996. On the same day, the accused also filed an application for bail under section 439 of the Code. The learned Addl.Sessions Judge enlarged Sumersingh on executing a personal bond of Rs.10,000/- by order dated 8.5.1996. The order reads as follows: "Heard, Mr Parmar for the applicant and P.P. Mr Jagani. Since even according to the police, the applicant does not appear to be involved in any offence, it is just and proper to release him on bail. The applicant be released on bail on furnishing personal bond in the sum of Rs.10,000/- and undertaking that he will remain present in the Court when summoned. Sd/- R P Vaghela Addl.Sessions Judge" On 9th May, 1996, Mr I B Vyas, Police Inspector, LCB, Palanpur submitted an application to the Special Judge stating that during the course of investigation in C.R. No.216/96, it is emerged that there is some conspiracy in giving the information with respect to staying in room No.305 of the Guest House and entering the name of Sumersingh in the register. He also stated that the signature of Sumersingh has been forged. In view of this, a request was made to permit him to add section 58 (2) of the NDPS Act in the FIR. The learned Magistrate did not pass any order thereon. On 14th May, 1996, Mr J R Vora, Special Judge, passed the order on the police report filed under section 169 of the Code on 6.5.1996. The learned Judge cancelled the bail bonds executed by Sumersingh in pursuance of the order dated 8.5.1996. The order dated 14.5.1996 reads as follows: "Learned PP Mr Jagani and learned Advocate B S Parmar for the accused were heard. Papers of investigation perused. Learned PP has contended that the evidence is deficient to connect the accused with the fact that he boarded in Hotel Lajwanti. Further evidence shows that the accused, at the relevant time, was at Pali, Rajasthan, and therefore, the report under section 169 of the Code is required to be accepted. He is released on personal bond by Addl.Sessions Judge, vide order dated 8.5.1996 below Criminal Misc. Application No.331/96. Hence in the interest of justice, following order is passed: O R D E R Report of the Investigating Officer under section 169 of the Code pursuant to the accused is accepted. The accused is released and discharged. Personal bond executed by the accused in pursuance of the order dated 8.5.1996 stands cancelled. Pronounced in the open Court on 14.5.1996 Sd/- J R Vora Special Judge" 7. I have perused the police diary of C.R. No.216/96. Nothing substantial has been done in this case. Mr D N Patel, learned APP submitted that the police is in search of the person who gave false information to the police from Pali. For this two computer photographs have been prepared. I cannot understand when even according to the police the said information was received on telephone how and what basis a computer photograph could be prepared. There is no progress beyond this, in this case. FIR Case No.403/96 of Kotwali police station, Pali for offence under sections 120-B, 195, 196, 342, 347, 357, 369, 458, 482 IPC and sections 17, 58 (1_ and 58(2) of NDPS Act dated 18.11.1996 8. On 17.10.1996, Sumersingh Rajpurohit submitted a complaint in the Court of Chief Judicial Magistrate, Pali, Rajasthan. He also produced an envelope containing two audio cassettes along with a schedule. In the said complaint, following persons have been arrayed as accused persons: 1. Phootarmal , resident of Bijapur, Pali 2. Raman R Jain, Addl.Judge, Gujarat High Court, Ahmedabad. 3. Sanjiv Bhatt, District Superintendent of Police, Rajkot, Gujarat 4. I B Vyas, Police Inspector, LCB, Palanpur 5. Yagnik, Traffic Inspector, Palanpur 6. Shantilal, owner of Hotel Lajwanti, Palanpur 7. Pradeepbhai, LCB, Palanpur 8. Hingerbhai, LCB, Palanpur 9. Kantibhai, Constable cum driver, Palanpur There are seven to eight other unknown police officers of Gujarat also included as accused persons. After following the requisite procedure, the learned Magistrate forwarded the complaint for investigation under section 156 (3) of the Code to Kotwali police station, Pali. However, the case was not registered by the police as officer incharge of the police station had hesitation in registering a case against Mr R R Jain, Judge of the High Court of Gujarat who was shown as accused No.2. A revision was filed by the State of Rajasthan against the order of Chief Judicial Magistrate dated 17.10.1996, so far as it relates to registering the case against Mr R R Jain is concerned. Reliance was placed on the case of K Veeraswamy vs. Union of India, reported in Criminal Law Reporter SC 1991 p.67. After discussing the case of the Supreme Court in Veeraswamy's case, the learned Addl.Sessions Judge in his judgment dated 15.11.1996, held thus "In my opinion, for registering an offence against Mr R R Jain, Judge of the High Court of Gujarat, consultation of Chief Justice of India is not required." The learned Judge, however, modified the order of the learned Magistrate so far as the direction of investigation to be conducted by the DGP is concerned. The learned Judge directed that the case shall be investigated by the P.I., Police Station, Pali. After decision in the Revision, the police registered the case as FIR Case No.403/96 dated 18.11.1996. The facts of FIR Case No.403/96 of Kotwali police station, Pali as culled out from the complaint and other materials on record are as follows: Accused No.1-Phootarmal is a permanent resident of Bijapur District, Pali. He has business in Shivganj and Pali. He is the real uncle of Mr R R Jain, a Judge of the High Court of Gujarat at the relevant time. Mr Jain is also a permanent resident of Bijapur. The engagement of Mr R R Jain's real sister Muli Devi had taken place with one Mr Javant Raj Jain of Bijapur, but before the marriage could take place, Muli Devi died. Mr Jawantraj married to Smt. Amribai alias Anita Jain. As per the caste and village customs, as Amribai married in place of Muli Devi, she was being treated by Mr R R Jain and other family members as real sister. A shop bearing No.6 situated at Vardhaman Market belongs to Amribai. As she resides at Bombay, a Power of Attorney has been given to Phootarmal. Narsinh, brother of the complainant Sumersingh carried on business in the said shop with Manoharlal Jain. The office of Sumersingh as Advocate also existed in the said shop. There was a dispute between Phootarmal and the tenants for vacating the shop. A Civil Suit was also pending. It is alleged that the accused persons have conspired to get the shop vacated and to fulfil this systematically planned a conspiracy, they arranged to file C.R. No.216/96 on 30.4.1996 under the NDPS Act at Palanpur against the complainant in which it was mentioned that Sumersingh stayed in room No.305 at Hotel Lajwanti, Palanpur on 29.4.1996 and opium was recovered from the said room. In the intervening night of 2nd and 3rd May, 1996, the Gujarat police personnel M/s I B Vyas, P.I. and Yagnik, PSI along with other police officers came to Sumersingh's house at about 1.30 a.m. (midnight). They called "Vakil saheb, Vakil saheb". On opening the door, they pounced on him. He was hand-cuffed and thrown in the jeep. He was manhandled. He was not even allowed to put on his shirt. They took him in baniyan and trousers. Family members gave information to his brother and fellow Lawyers, who in turn informed the Pali police about the incident. A wireless message was given to Shri Gomaram, PSI who was on patrolling duty. Mr I B Vyas, with a view to return Palanpur, just proceeded towards the Highway. Mr Gomaram, P.S.I., Kotwali police station who was on patrolling duty, intercepted the vehicle of the Palanpur police. Gomaram took them to the Pali Kotwali police station. At the police station, many Lawyers had assembled. Mr I B Vyas disclosed his identity as Police Inspector, LCB, Palanpur, Gujarat Police. All the police personnels were in civil dress. They could not produce the police diary. Police Inspector Kotwali Pali told Mr I B Vyas that even if they wanted to arrest Sumersingh in NDPS case before entering in Pali, they should have informed Rajasthan police. He also asked Mr I B Vyas to remove the hand-cuff from the hands of Sumersingh. Police at Pali advised Mr Vyas that they should take Sumersingh only in the morning after the entire matter is sorted out. Mr Vyas said that he should talk to Mr Sanjiv Bhatt, DSP at Palanpur. Mr Sanjiv Bhatt was contacted by the P.I. Mr Sanjiv Bhatt insisted that as there is elections, on 7th May, the police party along with Sumersingh should immediately be allowed to move. Mr I B Vyas gave a written Taharir (memo) stating that he has arrested Sumersingh in connection with C.R. No.216/96 under NDPS Act. An entry was also made in the Rojnama at police station Kotwali, Pali, narrating the entire incident. Mr Sumersingh has stated that Mr I B Vyas enquired from him about Vardhaman market and shop No.6. The jeep was also taken on that side. He showed him shop No.6. On reaching at Palanpur, he was produced before Mr Sanjiv Bhatt, DSP, Palanpur. He enquired from him as to what is the dispute about the shop in Vardhaman market. He asked him to vacate the same immediately otherwise he will have to initiate the proceedings of recovery of the remaining 4 kgs. of opium. He also said that once the recovery of 4 kgs. opium is made from him, it will be difficult for him to get bail even from the High Court. He also stated that the owner of the said shop is brother of Shri R R Jain, a Judge of the Gujarat High Court, who is also interested in getting the shop vacated. Sumersingh passed on this information to Narsingh Rajpurohit, who in turn contacted Raghunathsingh, the elder brother of Sumersingh and directed him to contact Phootarmal Jain. Accordingly negotiation talks commenced with Phootarmal. Narayan Singh of Kharabera played the role of mediator. Phootarmal asked him to give the vacant possession of the shop and also duly execute agreement in writing be given by Mohanlal, the original tenant, only then Sumersingh would be released. After negotiation, the agreement was signed between Phootarmal and Mohanlal on 5th May, 1996. As per the agreement, key of the vacant possession of the shop was handed over in trust to Narayan Singh of Kharabera. With