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Judgment
Bhargav D. Karia, J
Heard learned advocate Mr. Virat Popat for the petitioners and learned Additional Public Prosecutor Ms. C.M. Shah for the respondent- State
through video conference.
By way of present petition, under Article 226 of the Constitution of India, the petitioner seeks appropriate direction to carry out fair and impartial
investigation in connection with FIR being CR No.11208044200902/2020 registered with Pradhuumannagar police station for the offences under
sections 307, 323, 324, 504, 143, 147, 148 of the Indian Penal Code and section 135 of the GP Act and has prayed for the following reliefs :
“(A) To allow the present petition;
(B) To issue appropriate writ, order or direction directing the concerned Investigating Officer i.e. respondent No.3 to obtain necessary evidence in
connection with representation dated 08.07.2020(Annexure-C) of the petitioners and take further action in accordance with law;
(C) To issue appropriate writ, order or direction directing the concerned Investigating Officer i.e. respondent No.3 herein to investigate / take into
account plea of alibi raised by the petitioners in their representation dated 08.07.2020 (Annexure-C) and pass all necessary and consequential orders in
that regard;
(D) Pending admission, hearing and final disposal of this petition, to direct the concerned Investigating Officer to submit Action Taken Report (ATR)
in connection with the representation dated 08.07.2020 (Annexure-C) of the petitioners;
(E) To pass any other and further orders as may be deemed fit and proper to this Hon'ble Court.â€
It is the case of the petitioners that they are falsely involved in the FIR and in order to prove the innocence of the petitioners, they have provided
CCTV footage in pen drive to the concerned investigating agency. However, till date the investigating agency has not collected the material i.e. DVR
for the purpose of its verification by Forensic Science Laboratory. It is the case of the petitioners that there is a strong case of alibi of the petitioners
and therefore, the investigation with regard to DVR by FSL is required without which truth cannot be unearthed.
Learned advocate for the petitioners, Mr. Virat Popat submitted that direction may be given to the concerned investigating officer to
investigate/take into account plea of alibi raised by the petitioners in their representation dated 8th July, 2020 as at Annexure-C by taking necessary
evidence in the form of DVR from the house of the petitioners.
Learned APP Ms. Shah has submitted a report of the investigation officer wherein it is stated that the petitioners were not found when investing
officer went to their residence to collect DVR to verify the correctness of CCTV footage provided by the petitioners.
Learned advocate Mr. Popat submitted that the petitioners are always ready to co-operate to the investigating officer.
Learned APP Ms. Shah under instructions from investigating officer states that the investigating officer shall go to the residence of the petitioner
tomorrow i.e. 1 st August,2020 between 11 a.m. and 2 p.m. to collect DVR.
Learned Advocate Mr. Popat states that the petitioners shall remain present at their residence between 11 a.m. and 2 p.m. tomorrow i.e. 1 st
August,2020 and shall co-operate with investigating officer so as to enable him to collect DVR.
In such facts and circumstances of the case, the respondents after collecting the DVR from the house of the petitioners may look into the
representation made by the petitioners dated 8.7.2020 at page-39 (Annexure-C) of the petition and take appropriate decision at the earliest in
accordance with law. While considering the representation, the respondents shall keep in mind the observations made by this Court in case of
Chandan Pannalal Jaiswal v. State of Gujarat reported in 2005(3) GCD 2406, more particularly, paragraph no. 18 of the said decision which reads as
under :
“18. The plea of alibi if is being taken by the accused, then is considered to be a dangerous plea of defense. Even then, in the present case, the
petitioners have unfolded their line of defense and, therefore, in such a case struggle to bring truth out could have been started much earlier from the
police personnel of the lowest rank or the person so authorized to investigate by the Magistrate. It would be wrong to presume that all the persons
named by the petitioners during their interrogation, would support the petitioners only because on one hand, the prosecution says that some of the hotel
staff members have not supported the say of the petitioners....â€
With the above observations, without entering into the merits of the matter, the Special Criminal Application is disposed of.
The Registry is directed to communicate this order to the concerned Court/authority by Fax or E-mail. The Registry is also directed to send writ of
this order to learned advocate for the applicants through e-mail. Direct service is permitted.