The Gujarat High Court recently comprising of a bench of Justice Vaibhavi D. Nanavati observed that Court cannot order registration of FIR against investigating officer u/s 218 IPC sans inquiry. (Jayrajsinh Madhubha Gadhvi V/S State Of Gujarat)
The Court said that convicting the accused in absence of any evidence would cause irreparable injury and adversely affect the career of the accused.
Facts of the case
In this case, the writ-applicant being the Investigating Officer has illegally removed the names of the three accused only on the basis of the affidavit of the complainant and, therefore, the writ-applicant committed an offence under Sections 218 and 219 of the Indian Penal Code.
The appeal was filed challenging the order passed by the Additional Sessions Judge and seeking expungement of para-6 of the direction No.2 in the operative part of the order where the bench has rejected the bail application filed by the applicant.
Contention of the Parties
The counsel for the applicant submitted that merely because a person is named in the FIR does not necessarily mean that the person is in fact involved in the commission of the offence and the police officers are not bound to file charge sheet against those named persons in the FIR even if no material is found against such person.
Courts observation & Order
The bench upon perusing the facts of the case and the impugned order observed, "The aforesaid sections have been invoked without initiation of any inquiry or any material on record and in absence of any evidence and the same amounts to prejudice to the writ-applicant causing irreparable injury to the writ-applicant and the same would also amount to adversely affect and prejudice the career of the writ-applicant."
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The bench dismissing the appeal remarked, “In view of this Court, the impugned order dated 27.11.2018 passed by the Court below directing the DSP, East Kutchh to register offence against the writ-applicant under the aforesaid provisions within a period of 20 days is wholly unjustified. The Court below could not have passed the impugned order without issuance of notice to the writ applicant herein and without giving an opportunity to the writ applicant herein to explain the factual position.
The Court below has proceeded to direct the DSP, East Kutchh to lodge complaint against the writ-applicant under Sections 218, 219 and 212 of the Indian Penal Code, as referred above. The aforesaid sections invoked by the Court below against the writ-applicant would result in imprisonment for a period of 03 years or fine or both under Section 218 of the Code, imprisonment that would extend upto 07 years or fine or both for the offence committed under Section 219 of the Code and imprisonment for term which would extend upto 10 years under Section 221 of the Code. The aforesaid sections have been invoked without initiation of any inquiry or any material on record and in absence of any evidence and the same amounts to prejudice to the writ-applicant causing irreparable injury to the writ-applicant and the same would also amount to adversely affect and prejudice the career of the writ-applicant.”
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