(Per : HONOURABLE MR.JUSTICE V. M.
SAHAI)
1. We have heard learned advocate Mr.D.R.Bhatt for the appellant.
2. This Letters Patent Appeal has been filed challenging the judgment of the learned Single Judge dated 07.09.2011 passed in Special Criminal Application No.1543 of 2005. By the impugned judgment, the learned Single Judge has directed the CID (Crime), Gandhinagar to register the complaint/FIR against respondents No.1 and 2 and/or other police officer of the Meghraj Police Station for the offence under Section 302 of Indian Penal Code and other offence for unnatural death of Lalitaben who died on 23.9.2002 in police custody/lock-up of the Meghraj Police Station and hold the investigation and complete the same within a period of six months and submit the appropriate chargesheet/report before the concerned Magistrate/Court. The C.I.D., Crime to investigate the case without in any way being influenced by the earlier opinion of the Dy.Sp (Crime-II), Gandhinagar dated 31.12.2005 and independently.
3. The Full Bench of this Court in the case of Nitin Shantilal Bhagat and another vs. State of Gujarat as reported in 2011(3) GLR 1972 has held in para 43(i) as under:
"(i) If the relief asked for is against exercise of power under criminal law or the proceeding would be a criminal proceeding, or the proceeding if carried to its conclusion ultimately may result in sentence of death or by way of imprisonment or fine or forfeiture of property and those which have been specifically provided as a writ petition under criminal jurisdiction under clause (2) of Part II of Gujarat High Court Rules, 1993, such writ petitions should be treated a proceeding under criminal jurisdiction. In such case, the appeal under Clause 15 of Letters Patent against an order passed by learned Single Judge in a writ petition under Article 226 is not maintainable."
4. The Full Bench has taken a view that Letters Patent Appeal against the order passed in Special Criminal Application of criminal nature is not maintainable and, therefore, this Letters Patent Appeal is dismissed as not maintainable.
5. In view of dismissal of Letters Patent Appeal, civil application does not survive and accordingly it is also dismissed.
(V.M.
SAHAI, J.) (A.J.DESAI, J.) syed/ Top