1. Rule. Learned APP Ms. Archana Raval waives service of Rule for Respondent No.1-State of Gujarat.
2. The present Petition has been filed by the Petitioner under Articles 226 and 227 of the Constitution of India as well as under Section 482 of the Code of Criminal Procedure, 1973 for the prayer that appropriate writ, order or direction may be issued for quashing and aside the order passed by the learned Additional Senior Civil Judge and JMFC, Palanpur dated 3.8.2012 on the report made by the Investigating Officer (“I.O”) dated 31.7.2012 observing - “kept with the FIR”.
3. Heard learned Advocate Mr. P.P.Majmudar for the Petitioner and learned APP Ms. Archana Raval for Respondent No.1-State of Gujarat.
4. Learned Advocate Mr. Majmudar has submitted that the FIR was filed by the Petitioner – Original Complainant for different offences and ultimately the report at Annexure-A has been filed by the I.O. He submitted that the learned Additional Senior Civil Judge and JMFC, Palanpur has passed an order “kept with FIR” which is a procedure not according to the law. He submitted that appropriate summary report ought to have been filed and opportunity should be given to the Petitioner – complainant for objecting or protesting for not taking cognizance of some of the offences. He therefore submitted that the report made by the I.O. for deletion of some of the offences is contrary to the statutory provisions as well as the observations made by this Court in a judgment in case of Jagdish Nathabhai Solanki v. The State of Gujarat and Ors., 2008 (3) GLH 294. He pointedly referred to the observations made in this judgment and submitted that in similar circumstances such procedure was not accepted and the matter was remanded directing the I.O. to file appropriate summary report before the learned Magistrate who will decide after providing an opportunity to the Petitioner – Complainant. He therefore submitted that the present Petition may be allowed.
5. Learned APP Ms. Archana Raval submitted that the underlying object is that the authority lies with the Magistrate whether to accept the report or not and the opportunity would be with the Petitioner – Complainant. However, she submitted that in view of this judgment, instead of report for deletion of some of the offences, appropriate report be filed by the I.O.
6. In view of this rival submissions and considering the observations made by the High Court in a judgment in case of Jagdish Nathabhai Solanki v. The State of Gujarat and Ors. (supra), the present Petition deserves to be allowed. The report dated 31.7.2012 produced at Annexure-A is hereby quashed and set aside with the endorsement or the order by the learned Additional Senior Civil Judge and JMFC, Palanpur observing that “kept with the FIR”. It is accordingly directed that it would be in fitness and consistent with the provisions of law that if the I.O. is directed to submit the appropriate summary report qua some of the offences before the learned Additional Senior Civil Judge and JMFC, Palanpur with intimation to the Petitioner – Original Complainant. The learned Additional Senior Civil Judge and JMFC, Palanpur is directed to consider the same in accordance with law on its own merits after considering the objections raised by the Petitioner – Original Complainant and shall take the decision on merits whether to accept the report and / or to take the cognizance for some of the offences for which the report regarding deletion of the offences has been made.
7. With the aforesaid observation, the present Petition stands allowed. The Respondent No.2 shall file the appropriate summary report which may be considered on merits as stated above after hearing the Petitioner – Complainant on its merits by the learned Additional Senior Civil Judge and JMFC, Palanpur. Rule is made absolute. Direct service permitted.
(Rajesh H. Shukla,J) Jayanti*