SCR.A/2248/2007 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 2248 of 2007 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ========================================= 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 ? ========================================= DEVIDAS PYARELAL SHARMA Versus STATE OF GUJARAT & OTHERS ========================================= Appearance : MR NM KAPADIA for the Applicant MR LB DABHI ADDL. PUBLIC PROSECUTOR for Respondent Nos. 1,3 - 4. NOTICE SERVED BY DS for Respondent(s) : 2,5 - 6. ========================================= CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 22.4.2008 ORAL JUDGMENT 1. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following substantive relief:- “(A) Your Lordships be pleased to issue a writ of mandamus or writ of certiorari or any other appropriate writ, order of direction of the like nature directing respondent No.1 State to hand over investigation of SCR.A/2248/2007 2/7 JUDGMENT criminal complaint being I C.R. No.91/07 filed by Maneshbhai at Annexure F to any neutral and impartial investigating agency or to CID Crimes not connected with the investigation of the aforesaid complaint with a further direction to make appropriate and proper investigation in respect of the said complaint and especially the complaint at Annexure F filed by Maheshbhai on the basis of the complaint dated 9.8.2007 to Kapodra Police Station at Annexure A, the complaint by Fax to DSP, Himmatnagar by the petitioner, complaint dated 17.10.2007 to the Commissioner of Police, Surat city dated 17.10.2007 by the petitioner with a further direction to investigate the offence in proper direction taking into considerations the allegations made in this petition and be further pleased to direct the concerned Investigating Agency to submit report of investigation before this Hon'ble Court and be further pleased to direct such independent investigating agency to take effective and immediate steps.” 2. The facts of the case stated briefly are that one Maheshbhai Pyarelal Sharma, brother of the petitioner had lodged the aforesaid First Information Report being Ankleshwar Rural Police Station I C.R. No.91/07 alleging commission of the offence punishable under sections 323, 324, 504 and 114 of the Indian Penal Code against one Jagdishbhai and three other accused persons. According to the petitioner, though it was specifically alleged that Maheshbhai had been kidnapped and assaulted and had sustained grievous injury viz. ten stitches on the head, several injuries on the leg with crushed fracture on hip bone, the Ankleshwar police had registered the offence punishable under sections 326, 325, 504 and 114 of the Indian Penal Code. According to the petitioner, the police is acting in collusion with the said Jagdishbhai Patel, who is a millionaire and has great influence with the police and politicians. It is alleged in the present petition that initially Maheshbhai SCR.A/2248/2007 3/7 JUDGMENT alone was kidnapped and could be traced out only after a few days and was found to have been admitted in some hospital with serious injuries and nobody knew as to who had brought him to the hospital. That even hospital authority did not inform the police in this regard. Thereafter, after a month or more, the said Jagdishbhai along with two police personnel and four to five persons had come in a tempo trax vehicle and beaten and forcibly kidnapped not only Maheshbhai but his wife Ranjanben and young daughter Dipika aged 18 years and till date, their whereabouts have not been traced. According to the petitioner, he had made a complaint in this regard to the higher authority i.e. D.S.P., Himmatnagar and PI, Kapodara Police Station. However, till date, no effective steps have been taken by any of the authorities to trace out the three family members of the petitioner. According to the petitioner, he has filed the present petition because till date his brother Maheshbhai, his wife Ranjanben and daughter Dipika are missing and the petitioner apprehends that the police would close the chapter. 3. Heard Mr. N.M. Kapadia, learned advocate for the petitioner and Mr. L.B. Dabhi, learned advocate for the respondent – state authorities. 4. Mr. N.M. Kapadia, learned advocate for the petitioner has submitted that the police authorities have totally failed in their duties, inasmuch as no proper investigation has been carried out to trace out the petitioner's brother and his wife and daughter. It is submitted that as the accused Jagdishbhai is an influential person, no proper investigation is being made in the offence in question. It is accordingly, submitted that in the facts of the present case, it is expedient that the investigation be transferred to a neutral and impartial investigating agency or to CID Crimes. SCR.A/2248/2007 4/7 JUDGMENT 5. On the other hand, Mr. L.B. Dabhi, learned Additional Public Prosecutor has drawn the attention of the Court to the fact that the petitioner had moved a Habeas Corpus petition, as his brother, his brother's wife and daughter could not be traced by the police. It is submitted that before the Division Bench taking up the Habeas Corpus petition, the police had submitted reports from time to time as regards the efforts made by them to trace out the said missing persons. It is submitted that the Division Bench is seized with the matter and is satisfied with the investigation which has been carried out by the police so far. 6. Upon perusal of the record of the case and considering the submissions advanced by the learned advocates for the parties, it is evident that insofar as the allegation regarding kidnapping of the brother of the petitioner and his wife and daughter are concerned, the petitioner has not approached the concerned police station to lodge any complaint in that regard. It is pointed out by the learned advocate for the petitioner that the petitioner has sent the complaint by fax to the D.S.P., Himatnagar and the PI, Kapodara Police Station. On the other hand, Mr. L.B. Dabhi, learned Additional Public Prosecutor has submitted that no such complaint has been received by the concerned authorities. In the circumstances, when the petitioner has not lodged any complaint in respect of alleged offences, the question of investigating into the said offence would not arise. However, it appears that pursuant to the Habeas Corpus petition filed by the petitioner, the police have made several efforts to trace out the said missing persons and the Division Bench which is seized with the matter, is satisfied with the efforts made by the police authorities. In the circumstances, when no proper complaint has been lodged by the petitioner in connection with the said offence, the question of directing the Commissioner of Police, Sabarkantha to direct SCR.A/2248/2007 5/7 JUDGMENT proper investigation into the allegations made in the petition, does not arise at all. 7. As regards the main relief, whereby the petitioner seeks transfer of investigation to any other neutral and impartial investigating agency, from a perusal of the petition, it appears that the said grievance is raised directly before this Court. Before approaching this Court, the petitioner does not appear to have approached the higher police authorities or the learned Magistrate in connection with the said relief. 8. The Apex Court in the case of Sakiri Vasu v. State of Uttar Pradesh and others, (2008) 2 SCC 409 has held as follows:- 29. In Union of India vs. Prakash P. Hinduja and another 2003 (6) SCC 195 (vide para 13), it has been observed by this Court that a Magistrate cannot interfere with the investigation by the police. However, in our opinion, the ratio of this decision would only apply when a proper investigation is being done by the police. If the Magistrate on an application under Section 156(3) Cr.P.C. is satisfied that proper investigation has not been done, or is not being done by the officer-in- charge of the concerned police station, he can certainly direct the officer in charge of the police station to make a proper investigation and can further monitor the same (though he should not himself investigate). 30. It may be further mentioned that in view of Section 36 Cr.P.C. if a person is aggrieved that a proper investigation has not been made by the officer-in-charge of the concerned police station, such aggrieved person can approach the Superintendent of Police or other police officer superior in rank to the officer-in-charge of the police station and such superior officer can, if he so wishes, do the investigation vide CBI vs. State of Rajasthan and another 2001 (3) SCC 333 (vide para 11), R.P. Kapur vs. S.P. Singh AIR 1961 SC 1117 etc. Also, the State Government is competent to direct the Inspector General, Vigilance to take over the investigation of a cognizable offence registered at a police station vide State of Bihar vs. A.C. Saldanna (supra). 31. No doubt the Magistrate cannot order investigation by the CBI vide CBI vs. State of Rajasthan and another (Supra), but this Court or the High Court has power under Article 136 or Article 226 to order investigation by the CBI. That, however should be done only in some rare and exceptional case, otherwise, the CBI would be flooded with a large number of cases and SCR.A/2248/2007 6/7 JUDGMENT would find it impossible to properly investigate all of them. The Court has also held that the Magistrate has very wide powers to direct registration of an First Information Report and to ensure a proper investigation and for this purpose, he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). It is also held that the High Court should discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C. simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under Sections 36 and 154(3) before the police officers concerned, and if that is of no avail, under Section 156(3) Cr.P.C. before the Magistrate or by filing a criminal complaint under Section 200 Cr.P.C. and not by filing a writ petition or a petition under Section 482 Cr.P.C. 9. Considering the facts of the present case in the light of the principles enunciated by the Apex Court in the case of Sakiri Vasu (supra), it is an admitted position that the petitioner has not availed of the remedy provided under the provisions of the Code of Criminal Procedure, 1973, hence no case is made out for grant of any relief as prayed for in the present petition. As held by the Supreme Court in the aforesaid decision, when there are so many alternative remedies, writ petitions or section 482 petitions should not be entertained. 10. Insofar as the prayer seeking a direction against the Investigating agency to submit a report of the investigation before this Court is concerned, if the petitioner is aggrieved that a proper investigation has not been made by the officer-in-charge of the concerned Police Station, SCR.A/2248/2007 7/7 JUDGMENT as held by the Supreme Court in the case of Sakiri Vasu (supra), it is open for the petitioner to move an application under section 156(3) Cr.P.C. before the Magistrate for redressal of his grievance. In the circumstances, no case is made out for grant of the said relief. 11. For the foregoing reasons, therebeing no merit in the petition, the same is, accordingly, dismissed. shekhar/- (H.N.DEVANI, J.)