Vipul Shital Prasad Agarwal vs State Of Gujarat & Anr

3. The Petitioner was at the relevant time posted as Superintendent of Police, Banaskantha, Gujarat. On 28th December, 2006, one Tulsiram Prajapati was killed in an encounter and a First Information Report (F.I.R.), being I.C.R.No.115 of 2006, was registered with the Ambaji Police Station, Banaskantha, Gujarat, against unidentified persons under Sections 307, 427 and 34 of the Indian Penal Code, 1860 (IPC), Section 25(1)(A) of the Arms Act, 1959, and Section 135 of the Bombay Police Act, 1951.

5. One of the strange features of this case, therefore, is that in the case which was registered against the victim, 12 police officers, including the Petitioner, came to be arraigned as accused in what was alleged to be a fake encounter. However, the fact remains that F.I.R. No.115 of 2006 was lodged with the Ambaji Police Station on 28th December, 2006, resulting in the arrest of the Petitioner by the C.I.D. crime, on 3rd May, 2010, and the filing of charge-sheet on 30th July, 2010, within 90 days of his arrest.

8. Pursuant to the directions given by this Court, the C.B.I. registered a separate F.I.R. on 29th April, 2011, being R.C.- 3(S)/2011/Mumbai dated 29th April, 2011. On 31st May, 2011, the C.B.I. applied before the Court of Sessions Judge Palanpur, Banaskantha, Gujarat, in Sessions Case No.58 of 2010, inter alia, for the following directions :

9. The said application was allowed by the Sessions Judge on 9th June, 2011.

10. Since the investigation was not completed and the Petitioner had been in custody for a long time, an application for bail was moved on his behalf in the Court of learned Sessions Judge, Palanpur, on 16th August, 2011, who rejected the same on the ground that the application ought to have been moved before the Judicial Magistrate, First Class, Danta, and not before the Sessions Court.

11. Having regard to the order of the learned Sessions Judge, the Petitioner moved an application before the Judicial Magistrate, First Class, Danta, on 2nd September, 2011, for bail, which was rejected on 7th October, 2011. The Petitioner then moved the Gujarat High Court by way of Special Criminal Application No.2698 of 2011, for quashing and setting aside the aforesaid judgment and order dated 7th October, 2011, passed by the Judicial Magistrate, First Class, rejecting his prayer for bail. Another application for regular bail, being Criminal Misc. Application No.04 of 2012, was also filed on behalf of the Petitioner before the Sessions Judge, Palanpur, on 2nd January, 2012, on the limited ground of delay in the trial. The said bail application was dismissed by the 2nd Additional Sessions Judge on 27th February, 2012. The High Court also rejected the Petitioner’s application challenging the order of the Magistrate by its order dated 20th March, 2012. On 9th April, 2012, the Petitioner’s Criminal Misc. Application No.4729 of 2012, challenging the order of the 2nd Additional Sessions Judge dated 27th February, 2012, was dismissed by the High Court. It is against the said order that the present Special Leave Petition has been filed.

It is further prayed that in the light of order of the Hon’ble Supreme Court of India, no further proceeding may be allowed in the case till the investigation of CBI is finalized. And for this the applicant shall ever pray.”

20. Since no argument had been advanced on behalf of the Petitioner on the merits of the case, we also refrain from looking into the same and on the basis of our aforesaid observations, we are not convinced that the Special Leave Petition, along with the Criminal Miscellaneous Petition No.11364 of 2012, warrants any interference by this Court. The Special Leave Petition and the Criminal Miscellaneous Petition are, therefore, dismissed.

…………………………………………………CJI.

1. While I agree with the conclusion reached by Hon’ble the Chief Justice of India, I wish to add a few lines.

4. In my opinion, the mere undertaking of a further investigation either by the Investigating Officer on his own or upon the directions of the superior police officer or pursuant to a direction by the concerned Magistrate to whom the report is forwarded does not mean that the report submitted under Section 173(2) is abandoned or rejected. It is only that either the Investigating Agency or the concerned Court is not completely satisfied with the material collected by the investigating agency and is of the opinion that possibly some more material is required to be collected in order to sustain the allegations of the commission of the offence indicated in the report.

5. Therefore, the submission of Mr. Sushil Kumar, learned senior advocate appearing for the petitioner, that the directions given by this Court earlier in Writ Petition (Criminal) No.115 of 2007 would necessarily mean that the charge-sheet submitted by the police stood implicitly rejected is without any basis in law and misconceived. Even the fact that the CBI purported to have registered a “fresh FIR”, in my opinion, does not lead to conclusion in law that the earlier report or the material collected by the Gujarat Police (CID) on the basis of which they filed the charge-sheet ceased to exist. It only demonstrates the administrative practice of the CBI.

November 6, 2012.

[1] Section 173(2)(i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take c?