Gujarat High Court
Jyoti Sanjiv Rajput vs State Of Gujarat on 7 April, 2025
NEUTRAL CITATION
R/SCR.A/612/2025 CAV JUDGMENT DATED: 07/04/2025
undefined
Reserved On : 26/03/2025
Pronounced On : 07/04/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO.612 of 2025
(QUASHING)
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/-
=======================================================
Approved for Reporting Yes No
- √
=======================================================
JYOTI SANJIV RAJPUT
Versus
STATE OF GUJARAT & ANR.
=======================================================
Appearance:
MR RAMNANDAN SINGH(1126) for the Applicant(s) No. 1
MR JAY M THAKKAR(6677) for the Respondent(s) No. 2
MR CHINTAN DAVE APP for the Respondent(s) No. 1
=======================================================
CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
CAV JUDGMENT
1. By filing instant petition under Articles 14, 19, 21, 226 and 227 of the Constitution of India as well as under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 ("BNSS, 2023" for short), the petitioner has prayed for quashment of the order dated 25.11.2024 passed by the learned 5 th Additional Sessions Judge, Anand and thereby direct the District Superintendent of Police, Anand to hold further investigation in connection with the FIR lodged by her.
Page 1 of 24 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 23:23:34 IST 2025NEUTRAL CITATION R/SCR.A/612/2025 CAV JUDGMENT DATED: 07/04/2025 undefined
2. Heard learned advocate, Mr. Ramnanadan Singh for the petitioner, learned APP Mr. Chintan Dave for the respondent no.1 and learned advocate, Mr. Jay Thakkar for the respondent no.2.
3. Learned advocate, Mr. Ramnandan Singh appearing for the petitioner submitted that the petitioner herein is the complainant of an FIR being C.R. No.11215037220493/2022 registered with Vidyanagar Police Station, Anand for the offences under Sections 376(2)(n), 376(2)(e), 376(C)(d) and 323 of the Indian Penal Code against the respondent no.2 herein and pursuant to registration of the said FIR, the concerned Investigating Officer has carried out investigation and submitted chargesheet before the learned Magistrate concerned, who committed the case to the Court of Sessions, where it has been registered as Sessions Case No.15/2023 and is pending for trial.
4. Learned advocate submitted that in fact, it is the duty of the concerned Investigating Officer to make intensive search upon the facts of the matter and to collect maximum evidence against the guilty person but admittedly, it is the specific case of the petitioner that the petitioner had gone to the hospital of the respondent no.2 for getting treatment and at that relevant point of time, she was made unconscious by applying injection of anesthesia and, thereafter, she was unroped and her nude photos and videos were taken by the respondent no.2 and, thereafter under the guise of Page 2 of 24 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 23:23:34 IST 2025 NEUTRAL CITATION R/SCR.A/612/2025 CAV JUDGMENT DATED: 07/04/2025 undefined circulating the said articles in the social media, she was compelled to succumb to his ill-will and on number of occasions, the applicant was exploited by the respondent no.2, therefore at the time of registration of the FIR, there is specific mention about the doctor, who had given anesthesia to her, however during the course of investigation, he was not interrogated nor his statement was recorded.
5. Learned advocate submitted that it is the specific case of the applicant that on number of occasions, the applicant was compelled to go along with the respondent no.2 in the Royal Square Hotel, therefore, CCTV footages and the register of the said hotel were required to be collected. Learned advocate submitted that in fact, the bills of the said hotels were paid by the petitioner as she was directed to pay certain amount in the account of the respondent no.2 and part of said payment was also made by the petitioner in the account of one of the employees of the respondent no.2 and the said fact is clearly mentioned in the operative part of the FIR, but despite the said fact, the concerned Investigating Officer has not collected those set of evidence.
6. Learned advocate submitted that it is the specific case of the petitioner that particular photographs have been captured in the mobile of the respondent no.2 and the said fact is also mentioned in the FIR but reason best known to the concerned IO, the Page 3 of 24 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 23:23:34 IST 2025 NEUTRAL CITATION R/SCR.A/612/2025 CAV JUDGMENT DATED: 07/04/2025 undefined mobile of the respondent no.2 had not been seized though the said fact was well within the knowledge of the concerned Investigating Officer, which clearly goes on to show that there is lacuna in the investigation. Learned advocate further submitted that not only that, the petitioner had submitted written application before the Home Minister as well as other highest authority to keep watch upon the movement of the investigation, otherwise, there are all possible chances that under the influence of the respondent no.2, the investigation would not be carried out in proper manner and ultimately, the investigation was carried out in perfunctory manner. Learned advocate further submitted that in fact, it is the specific case of the petitioner that photos and videos of the petitioner have been captured in the mobile but the concerned Investigating Officer has not added the provision of IT Act in the offence.
7. Learned advocate submitted that in fact, impartial and neutral investigation is required to be carried out by the Investigating Officer just to secure the ends of justice, however, the chargesheet submitted by the concerned Investigating Officer clearly goes on to show that the concerned Investigating Officer had not carried out the investigation in a proper manner and there are certain glaring mistake apparently found out on the face of it in the evidence available on record because during the course of Page 4 of 24 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 23:23:34 IST 2025 NEUTRAL CITATION R/SCR.A/612/2025 CAV JUDGMENT DATED: 07/04/2025 undefined investigation, when the sequence of incidents of events are stated in a very categorical terms, in that event, all those evidences ought to have been collected by the concerned Investigating Officer and placed on record before the court concerned at the time of submission of chargesheet but without collecting those set of documents, the chargesheet has been submitted, which clearly goes on to show that the investigation has not been carried out in proper manner, which requires further investigation, otherwise, benefit would go to the accused.
8. Learned advocate submitted that just to bring all those important documents on record, the application was preferred by the petitioner under Section 173(8) of the CrPC before the learned Sessions Court, however, the said application has not been entertained by assigning reasons that the trial has already commenced and the application is preferred at belated stage, therefore, the said view adopted by the learned Judge is erroneous one and against the settled proposition of law. Learned advocate, therefore, urged that the present petition may be allowed quashing and setting aside the impugned order and thereby concerned Investigating Officer may be directed to carry out further investigation and then, submit detailed investigation papers before the competent court.
9. At this stage, learned advocate has placed Page 5 of 24 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 23:23:34 IST 2025 NEUTRAL CITATION R/SCR.A/612/2025 CAV JUDGMENT DATED: 07/04/2025 undefined reliance upon following decisions, (1) the judgment of the Hon'ble Supreme Court in case of Anant Thanur Karmuse Vs. State of Maharashtra & Ors., reported in (2023) 5 SCC 802;
(2) the judgment of the Hon'ble Supreme Court in case of Dharam Pal Vs. State of Haryana & Ors., reported in AIR 2016 SC 618;
(3) the judgment of the Hon'ble Supreme Court in case of Manoj Narain Agrawal Vs. Shashi Agrawala & Ors., reported in (2009) 6 SCC 385;
(4) the judgment of the Coordinate Bench of this Court in case of Dhaval Gunvantray Kotadiya Vs. The State of Gujarat, delivered in Criminal Revision Application No.843/2023;
10. On the other hand, learned advocate, Mr. Jay Thakkar appearing for the respondent no.2 has opposed the present petition contending that it is the dilatory tactics adopted by the petitioner to prolong the trial, which is at the fag end of proceedings of the trial. Learned advocate submitted that it is an admitted position of fact that on the basis of registration of FIR, the investigation was commenced and ultimately on conclusion of the same, the concerned Investigating Officer had submitted chargesheet before the court concerned and, thereafter, the case was committed to the court of Sessions and as Page 6 of 24 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 23:23:34 IST 2025 NEUTRAL CITATION R/SCR.A/612/2025 CAV JUDGMENT DATED: 07/04/2025 undefined on date, it is pending for trial. Learned advocate submitted that during the course of trial, summons were issued upon the witnesses and pursuant thereto, the witnesses have been examined and cross-examined by both the sides. Learned advocate submitted that in fact, the petitioner being a complainant had already entered into witness box and her chief-examination was recorded and, thereafter, she was cross-examined by the defence and, thereafter, the trial was proceeded further. Learned advocate submitted that during the course of trial, the prosecution witnesses including panch witnesses as well as two doctors have already been examined and subsequently, the petitioner has changed her advocate and after the change of her advocate, an application was preferred by the petitioner under Section 173(8) of the CrPC, however, the case is not as simple as it is projected by the petitioner but in fact, right from the beginning, the petitioner was keeping watch upon the investigation, therefore, it cannot be said that she was not aware about the investigation carried out by the concerned Investigating Officer. Learned advocate submitted that the respondent no.2 is a highly reputed person in the society being doctor by profession and considering overall facts of the case, the Coordinate Bench of this Court has granted anticipatory bail to the respondent no.2.
11. Learned advocate submitted that while submitting Page 7 of 24 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 23:23:34 IST 2025 NEUTRAL CITATION R/SCR.A/612/2025 CAV JUDGMENT DATED: 07/04/2025 undefined application by the petitioner, several issues were pin-pointed in the application specifically stating that despite mentioning certain facts in the FIR, those evidence have not been collected by the concerned Investigating Officer but the said fact is not correct. Learned advocate submitted that it is the specific case of the petitioner that one particular act is recorded in the mobile phone of the respondent no.2 and the said mobile has not been recovered by the concerned IO. Learned advocate, however, submitted that the said contention of the petitioner is incorrect in view of the fact that if the list of the documents produced by the learned Public Prosecutor appearing before the court concerned is seen, in that event, it is found out that copy of panchnama with regard to seizure of the mobile of the respondent no.2 and his wife is produced on record and the said list is produced by the respondent no.2 along with his reply. Learned advocate submitted that as per the case of the prosecution, the so-called incident had occurred during the period between 30.10.2018 to 12.05.2022 and at the time of registering the FIR, she has come with specific case that on the date of incident, the accused had worn T-Shirt, whereas the concerned Investigating Officer has recovered Shirt. Learned advocate, however, submitted that we are in the year 2025 and at this juncture, if the concerned Investigating Officer is directed to collect the Page 8 of 24 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 23:23:34 IST 2025 NEUTRAL CITATION R/SCR.A/612/2025 CAV JUDGMENT DATED: 07/04/2025 undefined said T-Shirt, it would nothing but a futile exercise. Learned advocate submitted that another contention raised by the petitioner is with regard to collecting of CCTV footages of the hospital and hotel, which have not been collected by the concerned Investigating Officer. Learned advocate, however, submitted that in fact, there is no CCTV installed in the hospital of the respondent no.2, therefore, there is no question of recovery of the same and the seizure of the CCTV footages of the hotel, where the petitioner was taken by the respondent no.2, is also practically not feasible as much water has been flown during these period. Learned advocate submitted that it is an admitted position of fact that the evidence of the petitioner is already recorded and thus, she has been examined and cross-examined by the parties and if the evidence of the petitioner is examined, in that event, it is found out that particular part is also admitted by the defence and there was no dispute on the part of the defence that they had not gone to the hotel to collect the data of CCTF footage of particular dates, therefore, the recovery of CCTV footage as well as register maintained by the employees of the hotel is much important to prove the charges leveled against the accused. Learned advocate submitted that it is an admitted position of fact that the charge of rape is levelled against the accused, therefore for the purpose of proving the charge of guilty against Page 9 of 24 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 23:23:34 IST 2025 NEUTRAL CITATION R/SCR.A/612/2025 CAV JUDGMENT DATED: 07/04/2025 undefined the accused, certain basic and essential ingredients as mentioned in the definition of 'rape' are required to be proved by the petitioner and for that purpose, evidence of the doctors well as certain photographs and/or video recorded by the respondent no.2 in his mobile are required to be placed on record and those evidence have already been collected by the concerned Investigating Officer and placed on record, therefore prima facie, it seems that the present petitioner has given the application with a sole intent to fill up the lacuna generated in her evidence and subsequently on the basis of certain questions were being asked by the defence in her cross-examination, the petitioner realized that just to get out from the said position, with a sole intent to delay the proceeding, the said application is preferred. Learned advocate submitted that so far as the amount deposited in the account of the respondent no.2 and his employee is concerned, the said fact is not disputed by the defence and at the time of leading evidence, the complainant has deposed in a very categorical terms that the said amount has already been deposited in the account of said witness and the cross-examination was also conducted on the said question, therefore, there was no dispute about the said issue and for the purpose of collecting those set of evidence, further investigation cannot be permitted at this stage at Page 10 of 24 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 23:23:34 IST 2025 NEUTRAL CITATION R/SCR.A/612/2025 CAV JUDGMENT DATED: 07/04/2025 undefined the instance of the petitioner.
12. Learned advocate submitted that in fact, it is settled proposition of law that only Constitution Court has got valuable rights to pass an order of re-investigation. Learned advocate submitted that if the Hon'ble Court would make glance upon the prayer clause, in that event, it would be found out that the petition is filed for further investigation at this belated stage when the trial is at the fag end, therefore, it may not be considered. In support of this submission, learned advocate has placed reliance upon the decision of the Hon'ble Supreme Court in case of Vinubhai Haribhi Malaviya & Ors. Vs. State of Gujarat & Anr., reported in (2019) 17 SCC 1 and submitted that the case of the respondent no.2 is squarely covered by the said decision and prima facie, it seems that there is no merit in the petition, therefore, the same may be quashed and set aside.
13. Learned APP Mr. Dave appearing for the respondent
- State of Gujart has adopted the submissions canvassed by learned advocate, Mr. Thakkar for the respondent no.2 and further submitted that there is no error of law and/or fact could be said to have been committed by the learned Judge concerned while passing impugned order, therefore, the said order does not require any interference at the hands of this Hon'ble Court and the present petition may be rejected.
14. Having heard learned advocates for the parties and Page 11 of 24 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 23:23:34 IST 2025 NEUTRAL CITATION R/SCR.A/612/2025 CAV JUDGMENT DATED: 07/04/2025 undefined having gone through the material available on record, the question, which would fall consideration of this Court, is as to whether the further investigation can be permitted as provided under Section 173(8) of the CrPC when the trial is already in progress and the witnesses are continued to be examined.
15. At this stage, I would like to reproduce the provision of Section 173(8) of the CrPC, "173 Report of police officer on completion of investigation.
(8) Nothing in this section shall be deemed
to preclude further investigation in
respect of an offence after a report
under sub- section (2) has been
forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub- sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub- section (2)."
16. Therefore, it is undoubted that the constitutional Court can direct further investigation even by some other investigating agency. The fair investigation is a pivotal to fair trial. It is Page 12 of 24 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 23:23:34 IST 2025 NEUTRAL CITATION R/SCR.A/612/2025 CAV JUDGMENT DATED: 07/04/2025 undefined undoubted that the power to order fresh/ de novo or re-investigation are being vested with the constitutional Court. The proceeding of the trial or examination of some witnesses cannot be an absolute impediment and fatuous the constitutional power from exercising it ensuring for the fair and just investigation.
17. The Hon'ble Supreme Court in a decision in the case of Amrutbhai Shambhubhai Patel Vs. Sumanbhai Kantibhai Patel & Ors., reported in (2017) 4 SCC 177, has considered the scope and ambit of the powers under Section 173(8) of CrPC. In the said decision, the Hon'ble Supreme Court has observed as under:-
"49. In contradistinction, Sections 156, 190, 200, 202 and 204 of the Cr.P.C clearly outline the powers of the Magistrate and the courses open for him to chart in the matter of directing investigation, taking of cognizance, framing of charge, etc. Though the Magistrate has the power to direct investigation under Section 156(3) at the pre-cognizance stage even after a charge-sheet or a closure report is submitted, once cognizance is taken and the accused person appears pursuant thereto, he would be bereft of any competence to direct further investigation either suo motu or acting on the request or prayer of the complainant/informant. The direction for investigation by the Magistrate under Section 202, while dealing with a complaint, though Page 13 of 24 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 23:23:34 IST 2025 NEUTRAL CITATION R/SCR.A/612/2025 CAV JUDGMENT DATED: 07/04/2025 undefined is at a post-cognizance stage, it is in the nature of an inquiry to derive satisfaction as to whether the proceedings initiated ought to be furthered or not. Such a direction for investigation is not in the nature of further investigation, as contemplated under Section 173(8) of the Code. If the power of the Magistrate, in such a scheme envisaged by the Cr.P.C to order further investigation even after the cognizance is taken, accused persons appear and charge is framed, is acknowledged or approved, the same would be discordant with the state of law, as enunciated by this Court and also the relevant layout of the Cr.P.C. adumbrated hereinabove. Additionally had it been the intention of the legislature to invest such a power, in our estimate, Section 173(8) of the Cr.P.C would have been worded accordingly to accommodate and ordain the same having regard to the backdrop of the incorporation thereof. In a way, in view of the three options open to the Magistrate, after a report is submitted by the police on completion of the investigation, as has been amongst authoritatively enumerated in Bhagwant Singh (supra), the Magistrate, in both the contingencies, namely; when he takes cognizance of the offence or discharges the accused, would be committed to a course, whereafter though the investigating agency may for good reasons inform him and seek his Page 14 of 24 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 23:23:34 IST 2025 NEUTRAL CITATION R/SCR.A/612/2025 CAV JUDGMENT DATED: 07/04/2025 undefined permission to conduct further investigation, he suo motu cannot embark upon such a step or take that initiative on the request or prayer made by the complainant/informant. Not only such power to the Magistrate to direct further investigation suo motu or on the request or prayer of the complainant/informant after cognizance is taken and the accused person appears, pursuant to the process, issued or is discharged is incompatible with the statutory design and dispensation, it would even otherwise render the provisions of Sections 311 and 319 Cr.P.C., whereunder any witness can be summoned by a Court and a person can be issued notice to stand trial at any stage, in a way redundant. Axiomatically, thus the impugned decision annulling the direction of the learned Magistrate for further investigation is unexceptional and does not merit any interference."
18. Thus from the aforesaid decision of the Hon'ble Supreme Court, it is found out that the said decision highlights the scope and ambit of the powers under Section 173(8) of CrPC. It is absolutely the prerogative of the Investigating Officer concerned to make further investigation in respect of any alleged offence in respect of which a report has been forwarded to the Magistrate concerned under Section 173(2) of CrPC. In case, after the filing of charge-sheet, the Page 15 of 24 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 23:23:34 IST 2025 NEUTRAL CITATION R/SCR.A/612/2025 CAV JUDGMENT DATED: 07/04/2025 undefined Investigating Officer concerned carries out further investigation and collects oral and/ or documentary evidence, then he may forward the further report/s regarding such evidence in the form prescribed to the Magistrate concerned. Such power to carry out further investigation could be exercised by the Investigating Officer or the Police Officer in-charge of the Police Station.
19. Considering the above proposition of law, if the facts of the case are examined, in that event, the grievance of the petitioner is that after registration of the FIR lodged by her, though the concerned Investigating Officer has carried out investigation pursuant thereto, it was not in a proper manner, that too, though specific instances have been mentioned in the FIR, therefore, when the application was preferred before the learned Judge concerned for further investigation under Section 173(8) of the CrPC, the said application had not been entertained only on the ground that the trial has already progressed. To appreciate the grievance agitated by the petitioner, the sequence of incident of events are required to be considered, which are as under, 30.10.2018 to 12.05.2022 The alleged incident had occurred. 24.05.2022 For the alleged incident, FIR came to be lodged by the petitioner.
13.06.2022 The concerned Investigating Officer
has submitted report before the
Page 16 of 24
Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 23:23:34 IST 2025
NEUTRAL CITATION
R/SCR.A/612/2025 CAV JUDGMENT DATED: 07/04/2025
undefined
court concerned for addition of
Section 384 of the IPC.
29.07.2022 The accused has been granted
anticipatory bail by the Coordinate Bench of this Hon'ble Court.
10.09.2022 On conclusion of the investigation, the chargesheet came to be filed by the concerned Investigating Officer before the court cocnerned.
28.09.2022 On filing of the chargesheet, it has
been registered as Criminal Case
No.5431/2022.
12.10.2022 The learned Magistrate took
cognizance and issued process upon the accused.
08.03.2023 The learned Magistrate committed the case to the court of Sessions.
08.05.2023 The prosecution submitted documentary list vide Exh.3.
17.07.2023 The learned Judge concerned framed the charge against the accused.
17.07.2023 Please of the accused came to be recorded vide Exh.5.
07.08.2023 The complainant appeared before the learned Judge concerned. Learned advocate for the complainant filed Vakalatnma vide Exh.6 and also submitted an application for adjournment vide Exh.7.
22.08.2023 The complainant was examined vide Page 17 of 24 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 23:23:34 IST 2025 NEUTRAL CITATION R/SCR.A/612/2025 CAV JUDGMENT DATED: 07/04/2025 undefined Exh.8 and the documents produced by the complainant were exhibited vide Exhs.9 & 10.
31.08.2023 Oral evidence of the complainant was concluded and other evidence came to be exhibited vide Exhs.12 & 13.
21.09.2023 PW No.2, Medical Officer came to be
examined vide Exh.15 and the
documents came to be exhibited vide Exhs.16 to 21.
05.10.2023 PW No.2, Medical Officer came to be
examined vide Exh.22 and the
documents came to be exhibited vide Exhs.23 to 25.
05.10.2023 Vide Exh.27, Vakalatnama of another learned advocate for the complainant was filed.
09.04.2024 PW No.4, Pnch Witness came to be
examined vide Exh.28 and the
documents came to be exhibited vide Exhs.29 & 30.
13.05.2024 PW No.5, Pnch Witness came to be
examined vide Exh.31 and the
documents came to be exhibited vide Exh.32.
13.05.2024 PW No.6, Panch Witness came to be examined vide Exh.33.
24.06.2024 The complainant filed an application, Exh.34 under Section 173(8) of the CrPC.
Page 18 of 24 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 23:23:34 IST 2025NEUTRAL CITATION R/SCR.A/612/2025 CAV JUDGMENT DATED: 07/04/2025 undefined 25.11.2024 The said application came to be rejected.
09.01.2025 The present petition is preferred before this Hon'ble Court.
20. Thus from the aforesaid sequence of incident of events clearly goes on to show that the incident has taken place during the period between 30.10.2018 to 12.05.2022, for which, FIR has been lodged on 13.06.2022 and, thereafter, the investigation was commenced and on conclusion of it, chargesheet came to be filed on 10.09.2022. Thus when the charge-sheet was submitted before the court concerned, the petitioner was aware about the so-called improper and impartial investigation carried out by the concerned Investigating Officer, however, she remained silent at that relevant point of time. Thereafter, the trial was proceeded further and even two doctors and three panch witnesses have been examined and cross-examined by the prosecution during interregnum period. Not only that, the oral evidence of the petitioner was also recorded and thus, she was examined and cross-examined by the parties and during her cross-examination, certain questions were being asked by the defence to the petitioner. Thus the petitioner was aware about the fact that the concerned Investigating Officer had not carried out investigation in proper direction but as stated above, despite knowing all these facts, she remained silent. However it is on Page 19 of 24 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 23:23:34 IST 2025 NEUTRAL CITATION R/SCR.A/612/2025 CAV JUDGMENT DATED: 07/04/2025 undefined 24.06.2024 i.e. after much delay, the application was preferred raising grievance about improper and partial investigation, which in the considered opinion of this Court cannot be considered. I have considered the oral evidence of the petitioner produced on record and found out that while cross- examining, certain questions were asked on that aspect, against which grievance is raised, which clearly goes on to show that the petitioner was aware about the said fact but did not act promptly but it is because of advice of someone and/or another advocate, who was engaged by the petitioner later, the said application was preferred with sole intent to prolong the trial as well as harass the respondent no.2.
21. At this stage, I may refer to the decision of the Hon'ble Supreme Court in case of Vinubhai Haribhai Malaviya (supra), upon which reliance has been placed by learned advocate for the respondent no.2, wherein the Hon'ble Supreme Court has discussed about the powers of Magistrate exercising for further investigation. The Hon'ble Supreme Court limits the power to be exercised till commencement of trial. The relevant observation made in para 42 reads as under:-
"42. There is no good reason given by the Court in these decisions as to why a Magistrate's powers to order further investigation would suddenly cease upon process being issued, and an accused appearing before the Magistrate, while concomitantly, the power of the police Page 20 of 24 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 23:23:34 IST 2025 NEUTRAL CITATION R/SCR.A/612/2025 CAV JUDGMENT DATED: 07/04/2025 undefined to further investigate the offence continues right till the stage the trial commences. Such a view would not accord with the earlier judgments of this Court, in particular, Sakiri [Sakiri Vasu v. State of U.P., (2008) 2 SCC 409], Samaj Parivartan Samudaya [Samaj Parivartan Samudaya v. State of Karnataka, (2012) 7 SCC 407], Vinay Tyagi [Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762], and Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92]; Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92] having clearly held that a criminal trial does not begin after cognizance is taken, but only after charges are framed. What is not given any importance at all in the recent judgments of this Court is Article 21 of the Constitution and the fact that the Article demands no less than a fair and just investigation. To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate's nod under Section 173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases midway through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so Page 21 of 24 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 23:23:34 IST 2025 NEUTRAL CITATION R/SCR.A/612/2025 CAV JUDGMENT DATED: 07/04/2025 undefined left out. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156(3) read with Section 156(1), Section 2(h) and Section 173(8) CrPC, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding, as was held in Hasanbhai Valibhai Qureshi [Hasanbhai Valibhai Qureshi v. State of Gujarat, (2004) 5 SCC 347]. Therefore, to the extent that the judgments in Amrutbhai Shambhubhai Patel [Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel, (2017) 4 SCC 177], Athul Rao [Athul Rao v. State of Karnataka, (2018) 14 SCC 298] and Bikash Ranjan Rout [Bikash Ranjan Rout v. State (NCT of Delhi), (2019) 5 Page 22 of 24 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 23:23:34 IST 2025 NEUTRAL CITATION R/SCR.A/612/2025 CAV JUDGMENT DATED: 07/04/2025 undefined SCC 542] have held to the contrary, they stand overruled. Needless to add, Randhir Singh Rana v. State (Delhi Admn.) [(1997) 1 SCC 361] and Reeta Nag v. State of W.B. [(2009) 9 SCC 129] also stand overruled."
22. Coming back to the case on hand, though the petitioner has pointed out certain exigencies for seeking further investigation, but none of them can be considered as a lapse or deficiency in the investigation, which equates with non-observation of fair investigation. If the grounds mentioned in Exh.34 are examined, in that event, it is found out that those grounds can be said to be thoughts of the complainant for further investigation and same cannot be considered for further investigation. Merely, the petitioner - complainant wishes to carry out investigation in a particular way would not be a reason for order for further investigation of the offence. There is no circumstance pointed out by the petitioner - complainant which warranting further investigation of the offence. Some of thoughts in mind of the complainant if not carried out by investigating officer in investigation of the offence, cannot be basis of order for further investigation. The complainant seeking further investigation is needed to show and display serious lapses, which are glaring and have prejudicial affect upon fair trial. I have also considered the findings given and conclusion arrived at by the learned Judge while rejecting the said application and I am of Page 23 of 24 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 23:23:34 IST 2025 NEUTRAL CITATION R/SCR.A/612/2025 CAV JUDGMENT DATED: 07/04/2025 undefined the considered opinion that there is no error committed by the learned Judge while passing said order, which requires interference at the hands of the Hon'ble Court.
23. I have also gone through the decisions relied upon by the learned advocate for the petitioner, however, it is required to be noted that there cannot be any dispute with regard to the ratio laid down in the same but in the facts and circumstances of the case on hand, the said decisions would be of no help to the present applicant at this juncture.
24. Under the supervisory jurisdiction under Articles 226 227 of the Constitution of India, I do not find any reason to interfere with the impugned order. Resultantly, present petition fails and stands rejected. Notice is discharged.
Sd/-
(DIVYESH A. JOSHI, J.) Gautam Page 24 of 24 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 23:23:34 IST 2025