Gujarat High Court
Akhilesh Shrinarayan Tiwari vs State Of Gujarat on 21 July, 2025
NEUTRAL CITATION
R/SCR.A/3701/2013 CAV JUDGMENT DATED: 21/07/2025
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Reserved On : 09/07/2025
Pronounced On : 21/07/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 3701 of 2013
With
CRIMINAL MISC.APPLICATION (FOR STAY) NO. 1 of 2018
In R/SPECIAL CRIMINAL APPLICATION NO. 3701 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
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AKHILESH SHRINARAYAN TIWARI
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR MP SHAH(2418) for the Applicant(s) No. 1
MS. KRUTI M SHAH(2428) for the Applicant(s) No. 1
ADITYA A CHOKSI(7835) for the Respondent(s) No. 4
MR AM PAREKH(562) for the Respondent(s) No. 2,3
MR BHAVESH B CHOKSHI(3109) for the Respondent(s) No. 4
MR CHINTAN DAVE, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
CAV JUDGMENT
1. By way of this petition under Article 227 of the Constitution of India, read with section 482 of Cr.P.C., the petitioner has prayed for following reliefs :-
"(A) Issue appropriate writ order or direction for quashing and setting aside the order dated 30.10.2013 passed by Ld. Addl. Sessions Judge, Surat in Criminal Revision Application No.87 of 2013 and order dated 14.03.2013 passed by Addl.Page 1 of 21 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:52:06 IST 2025
NEUTRAL CITATION R/SCR.A/3701/2013 CAV JUDGMENT DATED: 21/07/2025 undefined Chief Judicial Magistrate, Surat below application Exh.82 in Criminal Case No.10020 of 2006 and Criminal Case No.21409 of 2006.
(B) Pending admission final hearing and disposal of this petition, stay the further proceedings of Criminal Case No.10020 of 2006 and Criminal Case No.21409 of 2006 pending before the Ld. 10th Senior civil Judge and JMFC, Surat city.
(C) Grant such other and further relief as may be deemed fit and proper in the interest of justice."
2. Facts of the case are as under :-
2.1. The petitioner is an original complainant of FIR C. R. No. 1228 of 2005 registered at Pandesara Police Station for the offence U/Ss. 406, 420, 467, 468, 471, 120B and 114 of IPC. It was alleged in the said complaint that the accused had hatched conspiracy to grab the joint ancestral property situated at Plot No. M/5-6 and 7 of Prince Industrial Estate in S. No. 131 of Village Bhestan, during the periods between 02.07.03 to 07.05.2005 and they had created bogus forged power of attorney in the name of accused Matiwar Shrinarayan and the signature of the witnesses were also forged and on the basis of the said forged power of attorney, the property in question was sold to accused Shyamkumari Matiwar Trivari and Kishanchand Shrinarayan Tiwari.
2.2 The accused were arrested and thereafter they were Page 2 of 21 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:52:06 IST 2025 NEUTRAL CITATION R/SCR.A/3701/2013 CAV JUDGMENT DATED: 21/07/2025 undefined released on bail. During the investigation the police did not recover the original bogus power of attorney and the police also did not take the specimen signature and thumb impression of the witnesses as well as the accused and did not same the sent to hand writing expert. The complainant had obtained an expert opinion of private hand writing expert which has concluded that the signatures made in power of attorney are bogus and forged but the said report was also not included in the papers of the charge sheet. Therefore the petitioner made an application Exh. 63 u/s. 173(8) of Cr. P. C. before the Trial Court on 25.03.2011.
The 5th Addl. Senior Civil Judge, Surat has dismissed application Esh. 63 seeking further investigation by passing order dared 29.11.2011.
2.3. The petitioner being aggrieved by the said order preferred Cri. Revision Application No. 27/12 before the Ld. District and Sessions Judge on 04.02.12. The Addl. Sessions Judge was pleased to allow the said revision application by quashing and setting aside the order dated 29.11.2011 and directed the investigating agency to further investigate into the matter and find out the power of attorney dated 02.07.2003 executed in favor of the Matiwar Shrinarayan Tiwari at the earliest.
2.4 The petitioner states that unarmed head constable of Pandesara Police Station submitted one report dated 28.12.2012 at Exh. 80 before the Trial Court by stating that the offence is of the year 2005 and the accused were arrested in the year 2006 and because of the lapse of 6 to 7 years, the power of attorney is not recoverable.
Page 3 of 21 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:52:06 IST 2025NEUTRAL CITATION R/SCR.A/3701/2013 CAV JUDGMENT DATED: 21/07/2025 undefined 2.5. The petitioner states that he has raised the objections against the report, at Exh. 82 before the Trial Court and prayed to direct further investigation by an officer of higher rank and to be supervised by the police commissioner. The said objections were raised on 19.02.13. Vide order dated 14.03.13 the said objections along with the prayer of further investigation was rejected by the Trial Court.
2.6. Being aggrieved and dissatisfied by order dated 14.03.13 passed below an application Exh. 82 the petitioner presented Cri. Revision application No. 87 of 2013 before the Ld. District and Sessions Judge on 04.04.2013. Vide order dated 30.10.2013 the Ld. Addl. Sessions Judge is pleased to dismiss the revision application. Hence, present petition.
3. In essence, the petitioner who is original complainant is challenging the order passed by the learned Sessions Judge in Revision Application which has confirmed order passed by learned CJM below Exh.82, whereby, learned Trial Court declined to issue order for further investigation.
4. Learned advocate Ms.Shah for the petitioner in her extensive argument after reading complaint as well as referring to second round of litigation took place before the learned Trial Court would submit that Investigating Officer in hand and glove with accused did not carry out investigation in righteous way. She would further submit that forged power of attorney used to execute sale deed is centric document, which was required to be Page 4 of 21 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:52:06 IST 2025 NEUTRAL CITATION R/SCR.A/3701/2013 CAV JUDGMENT DATED: 21/07/2025 undefined collected during investigation, however, IO without making proper and fruitful investigation and without obtaining original or copy of Power of attorney upon which sale deed was executed to sell immovable property tendered charge sheet. She would submit that firstly application was preferred at Exh.63 before the learned Trial Court in joint trial of Criminal Case No.10020 of 2006 and Criminal Case No.21409 of 2009 raising multiple reason and grounds. She would submit that learned Trial Court rejected the application on the ground that charge sheet as well as two additional charge sheet are filed in the matter. Police had sufficient time to investigate the offence and alleged registered sale deed which was executed upon alleged forged power of attorney are produced during deposition of complainant. Further reasons assigned by learned Trial Court is that it is not the case of the complainant that false signature of complainant or witnesses are made on the registered sale deed. Reasons is also ascribed that in view of such aspect it is not incumbent to send document for verification of signature. Learned Trial Court upon this reasons dismissed the application Exh.63 with liberty to the complainant to produce opinion of private hand writing expert. It is submitted that being aggrieved by the said order, the petitioner preferred Criminal Revision Application No.27 of 2012 before the learned Sessions Court, Surat. Learned Revisional Court after recording reasons prima facie believed that sale deed executed in favour of the purchaser is based upon power of attorney and it is essential to recover the same. Learned Sessions Court also recorded changing version of the accused, whereby, firstly he said that power of attorney is lying with State Bank of Bikaner, but upon investigation it is found that said Page 5 of 21 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:52:06 IST 2025 NEUTRAL CITATION R/SCR.A/3701/2013 CAV JUDGMENT DATED: 21/07/2025 undefined power of attorney is not lying with SBI which has sanctioned and given loan. Learned Sessions Court believed that not getting power of attorney or copy thereof is flawing investigation, accordingly passed order to investigate the offence further.
4.1. Learned advocate Ms.Shah submitted that subsequent thereto, Head Constable at Pandesara Police Station has carried out further investigation. She would further submit that looking to the allegations of offence in FIR and in charge sheet it indicates that maximum punishment, in event of successful conviction would be more than 10 years. It is submitted that instead of investigation by PSO or PI, investigation is carried by Head Police Constable and recorded statement of two or three person and came to conclusion that since original power of attorney is not traceable, no further investigation is possible. She would further submit that objection to the report and seeking further investigation was moved before the learned Trial Court vide Exh.82. Said application without any reason has been rejected by learned Trial Court by cryptic order and therefore, another Revision Application was preferred being Criminal Revision Application No.87 of 2017. Learned Revisional Court passed order again of cryptic in nature and declined to investigate offence further under section 173(8) of Cr.P.C. Hence, this petition. It is submitted that since prosecution has not obtained forged power of attorney or copy thereof, offence alleged under section 467, 468 and 471 of IPC could not be proved. She would further submit that in absence of power of attorney deed, case of complainant would not stand in absence of forged document.
Page 6 of 21 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:52:06 IST 2025NEUTRAL CITATION R/SCR.A/3701/2013 CAV JUDGMENT DATED: 21/07/2025 undefined 4.2. Learned advocate Ms.Shah further submitted that inaction on the part of the police and further investigation by unauthorized person who is not empowered to carry out investigation but has submitted report, which is confirmed by learned Trial Court in erroneous order. The error on part of learned Court below continued as learned Sessions Court has confirmed the said order by dismissing the Revision. She would further submit that base of entire accusation is forged power or attorney. She further submits that accused during the investigation canged version of power of attorney deed. IO followed those tainted version and submitted report that since power of attonrey is not traceable, it could not be placed in charge sheet papers. She would further submit that if original power of attorney is not traceable, IO could have obtained certified copy from office of sub registrar as forged power of attorney has been used towards executing sale deed and after obtaining said power of attorney or copy thereof, investigating officer can send the same for purpose of verifying the signature on the power of attorney to FSL. Ultimately, such course of procedure would meet standard of fair investigation.
4.3. In view of above, it is submitted that learned Courts below have committed serious and gross error in rejecting prayer of the petitioner.
4.4. Insofar as to meet with observation passed by Co-ordinate Bench on 25.11.2024 that "further investigation that too at the instance of complainant after framing of charge is against law Page 7 of 21 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:52:06 IST 2025 NEUTRAL CITATION R/SCR.A/3701/2013 CAV JUDGMENT DATED: 21/07/2025 undefined pronounced by Hon'ble Supreme Court", learned advocate Ms.Shah referred to judgment of Hon'ble Apex Court in the case of Anant Thanur Karmuse v/s. State of Maharshtra [2023 (5) SCC 802] and submitted that Constitutional Court can direct further investigation or investigation by some other agency. It is submitted that purpose of further investigation or fair investigation is fair trial. She would further submit that complainant has fundamental right of fair investigation and fair trial. She would submit that merely filing of charge sheet and framing of charge would not come in way for further investigation / re-investigation, if facts so warrant. She would further submit that power of ordering fresh investigation / de- novo investigation / re investigation is vested with Constitutional Court in line of Article 21 of the Constitution of India. The Court can in given facts and circumstances pass necessary orders for fair investigation and fair trial. It is submitted that complainant should not feel that he is orphan under law on the ground that charge sheet is filed in the manner and charge is framed, petitioner being complainant cannot seek for further investigation.
4.5. Making above submission, learned advocate Ms.Shah submitted to overturn concurrent findings arrived by learned Trial Courts and pass order for further investigation in the matter.
5. Per contra, learned advocate Mr.A.M.Parekh for the accused submitted that charge sheet in the case is filed on 24.02.2006 and first application for further investigation was Page 8 of 21 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:52:06 IST 2025 NEUTRAL CITATION R/SCR.A/3701/2013 CAV JUDGMENT DATED: 21/07/2025 undefined filed by complainant on 24.03.2011. He further submitted that prior to that petitioner entered into compromise with purchaser of disputed land and consented to quash FIR and subsequent proceedings. It is submitted that thus on 09.07.2010 Co- ordinate Bench of this Court in Cr.M.A.No.5154 of 2010 passed order to quash FIR and charges against purchasers of the land. It is submitted that since the petitioner has consented to quash FIR as well as charge framed against the accused who are subsequent purchasers, it can be said that petitioner - complainant has ratified transaction. Thus, as a matter of fact, there is no reason to believe that power of attorney through which sale deed was executed was forged.
5.1. Learned advocate Mr.Parekh further submitted that when application Exh.63 was tendered on 24.03.2011 before the learned Trial Court, the petitioner did not made averments that he has consented before the High Court to quash FIR against some of the accused, who are subsequent purchasers of land. Even no such averments are made in Revision or in second round of litigation, orders of which are impugned in this petition. Therefore, case of the petitioner suffers from principle of suppression of material facts. It is submitted that according to order passed by Co-ordinate Bench in Cr.M.A.No.5154 of 2010, no useful purpose was to be served in permitting further investigation and trial against petitioner of that petition. It is submitted that since facts are suppressed before the learned Trial Court and learned Sessions Court, the petitioner is not entitled to get any extra ordinary relief before this Court.
Page 9 of 21 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:52:06 IST 2025NEUTRAL CITATION R/SCR.A/3701/2013 CAV JUDGMENT DATED: 21/07/2025 undefined 5.2. Upon above submission, learned advocate Mr.Parekh submitted to dismiss the petition.
6. Learned advocate Mr.Chokshi who is representing other respondents did not remain present as the said respondents are formal party and FIR against them are quashed on consent of petitioners.
7. Learned APP hotly contesting submission of learned advocate Ms. Shah relied upon judgment of Hon'ble Apex Court in case of Vinubhai Haribhai Malviya v/s. State of Gujarat [2019 (17) SCC 1] and submitted that there is no cavil that Constitutional Court can pass order for further investigation / de-novo investigation at any point during trial, however, power of Magistrate to direct further investigation is limited to the stage of framing of charge of till commencement of trial. It is submitted that full bench judgment in case of Vinubhai (supra) is also referred in the judgment Anant Thanur Karmuse (supra), where, Hon'ble Apex Court observed that power of learned JMFC to pass order for further investigation is limited till commencement of trial. Learned APP would submit that power of Constitutional Court to pass order of further investigation cannot be conflated with power of learned JMFC to pass order of further investigation. It is further submitted that perusal of relief claimed by the petitioner it indicates that the petitioner essentially challenges order passed by Court below, wherey, learned courts below have declined to pass order for further investigation . It is submitted that petitioner cannot claim relief that at any stage of proceedings, learned JMFC can pass order Page 10 of 21 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:52:06 IST 2025 NEUTRAL CITATION R/SCR.A/3701/2013 CAV JUDGMENT DATED: 21/07/2025 undefined for further investigation.
It is also submitted that the petitioner has not asked any relief under Article 226 of the Constitution of India to seek further investigation from the Court but essentially assails order passed by learned Court below declining to pass order for further investigation by invoking jursidcition under Article 227 of the Contitution of India. Thus, in that event, judgment relied upon by learned advocate Ms.Shah is not applicable to the facts of the case. Learned APP would submit that Investigating Officer has carried out detail investigation and conclude with reason that why power of attorney alleged to have been forged could not be collected and placed in charge-sheet. Lastly, it is submitted that in the present case trial is almost at verge of completion, except complainant and Investigating Officer, all witnesses are examined by the learned Trial. Thus, looking to this aspect, this Court may not exercise inherent power to decide case in favour of the petitioner.
8. Regard had been to rival submissions of both sides and considering the issue involved in the matter, since the petition is filed under Article 227 of the Constitution of India, at the outset, I may refer to scope and ambit of petition filed under Article 227 of the Constitution of India. Five Judges Bench of Hon'ble Supreme Court in the case of Waryam singh and Anr. v/s. Amarnath and Anr. (1954) 1 SCC 51 approved ratio laid down in the case of Dalmia Jain Airways Ltd. Vs/. Sukumar Mukherjee [1950 SCC Online Cal. 88] and held that power conferred by Article 227 of the Constitution of India be exercised Page 11 of 21 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:52:06 IST 2025 NEUTRAL CITATION R/SCR.A/3701/2013 CAV JUDGMENT DATED: 21/07/2025 undefined most sparingly and only in appropriate cases in order to keep the subordinate Courts within bounds of their authority and not for correcting mere errors. Para 13 of the said judgment reads as under :-
"13. This power of superintendence conferred by article 227 is, as pointed out by Harries C. J., in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee(2), to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors. As rightly pointed out by the Judicial Commissioner in the case before us the lower courts in refusing to make an order for ejectment acted arbitrarily. The lower courts realised the legal position but in effect declined to do what was by section 13 (2) (i) incumbent on them to do and thereby refused to exercise jurisdiction vested in them by law. It. was, therefore, a case which called for an interference by the court of the Judicial Commissioner and it acted properly in doing so. In our opinion there is no ground on which in an appeal by special leave under article 136 we should interfere. The appeal, therefore, must stand dismissed with costs."
9. Recently, Hon'ble Apex Court in the case of K.Valarmathi v/s. Kumaresan [2025 (0) INSC 606] held in para 8 as under :-
"8. Power of the High Court under Article 227 is supervisory and is exercised to ensure courts and tribunals under its supervision act within the limits of their jurisdiction conferred by law. This power is to be sparingly exercised in cases where errors are apparent on the face of record, occasioning grave injustice by the court or tribunal assuming jurisdiction which it does not have, failing to exercise jurisdiction which it does have, or exercising its jurisdiction in a perverse manner."
10. In background of above aspect, if we examine issue raised Page 12 of 21 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:52:06 IST 2025 NEUTRAL CITATION R/SCR.A/3701/2013 CAV JUDGMENT DATED: 21/07/2025 undefined in this petition, it is limited to questioning legality of the two orders passed by Courts below. Relief is limited to examine legality of judgment and order passed by learned Additional Sessions Judge, Surat in Revision Application No.87 of 2013 which has confirmed order passed by learned CJM, Surat below Exh.82 in joint trial of Criminal Case No.10020 of 2006 and Criminal Case No.21409 of 2006.
11. From the arguments, pleadings and record, what could be noted that dispute raised in this petition has chequred history. The petitioner who is complainant of FIR being C.R.No.I-228 of 2005, investigation of which is completed and charge sheet is filed on 24.02.2006, first time came before the learned Trial Court on 24.03.2011 by filing application Exh.63. Admittedly, by that time, trial had commenced. Learned Trial Court recorded myriad reasons to reject the application including on the ground that trial has commenced. Noticeably, when the application was filed before the learned Trial Court proceedings of Cr.M.A.No.5154 of 2010 was already initiated at the instance of Kishanchand Shrinarayan Tiwari before this Court and on 09.07.2010 in this proceedings complainant gave consent to quash the complaint. This proceedings were in regard to quashing of questioned FIR. The petitioners of the petition were purchasers of the property. This factual aspect though was within knowledge of petitioner, he did not aver same in the application Exh.63. Suppression of material fact is thus is conspicuous and become stark. Learned Trial Court dismissed the application Exh.63 permitting the petitioner to file report of private handwriting expert. Learned Sessions Court in Criminal Page 13 of 21 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:52:06 IST 2025 NEUTRAL CITATION R/SCR.A/3701/2013 CAV JUDGMENT DATED: 21/07/2025 undefined Revision Application No.22 of 2012 recorded following reasons to allow the Revision Application :-
"7. Considering the allegation as they are the recovery of the alleged forged power of attorney is very crucial, as it is the only evidence which could reflect as to whether the said power of attorney is forged or not. The learned lower Court has observed in the order that the power of attorney is seized by the investigating agency during investigation. But, the power of attorney which is seized by the investigating agency, is the power of attorney dated 30th June 2003, which is executed by the uncles of the applicant in his favour, whereas, the sale deeds in question have taken place on the basis of the power of attorney dated 02.07.2003 The record indicates that the accused Matiwar Shrinarayan Tiwari, during investigation, had informed the police that the power of attorney dated 02.07.2003 was deposited by him with the State Bank of Bikaner and Jalpur for the purpose of obtaining loan. Pursuant thereto, the Investigation Officer appears to have inquired with the State Bank of Bikaner and Jaipur as regards the said. power of attorney and the said Bank vide communication dated 29.04.2006, addressed to Police Inspector, Pandesara Police Station has informed that the power of attorney was not deposited with the Bank by the borrower. Thus, the accused Matiwar Shrinarayan Tiwari has mis-led the investigating agency. The investigating agency also having come to know that the power of attorney is not deposited with the Bank, does not appear 10 have made any attempts to find out and recover the said power of attorney. Therefore, the observation made by the learned lower Court that the power of attorney is seized by the Investigation Officer is not correct on the face of record. The said power of attorney would be the only piece of evidence, which would speak for itself and demonstrate whether it is forged or not. Under the circumstances, it would be of utmost importance to seize the said power of attorney and since the investigating agency does not appear to have made sufficient attempts to find out the sald power of attorney, it is required to be directed to further investigate into the matter and find out the said power of attorney. Under the circumstances, the present Page 14 of 21 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:52:06 IST 2025 NEUTRAL CITATION R/SCR.A/3701/2013 CAV JUDGMENT DATED: 21/07/2025 undefined revision application deserves to be allowed."
12. Investigating Officer has carried out further investigation and filed report (Annexure D) pursuant to order of learned Sessions Court. Statement of accused was again recorded and he has stated in his statement that complainant by breaking opened, has taken possession of power of attorney. Thus, power of attorney which alleged to have been forged is not traceable. Report of Investigating Officer on further investigation is objected by unsuccessfully filing Exh.82. Being aggrieved, again Revision Application was moved before the learned Sessions Court vide Revision Application No.87 of 2013. In para 6 learned Sessions Judge has ascribed following reasons :-
"[6] Heard learned advocates for the pajties and perused the record of learned lower Court. It is an admitted position that earlier, the applicant had preferred Criminal Revision Application No.27 of 2012 before this Court challenging the order dated 29/11/2011 bassed by learned mal Court below application Exh.63, wherein, the applicant had prayed for further investigation to find out the power of attorney in question. At that time, having regard to the facts of the matter and considering the fact that certain observations made by learned lower Court was erroneous, this Court had allowed the said revision application and had directed the Investigating Agency to carry out further investigation and to find out the power of attorney dated 02/07/2003. Pursuant to the said order, the investigation for finding out the said power of attorney was carried out and the report as regards the same dated 28/12/2012 has been submitted before the learned lower Court vide Exh.80, wherein, it is stated that since the period of 6,7 years has passed, no fruitful information as regards the power of attorney could be obtained. It is the case of the applicant that the police authorities have not made any sincere efforts for finding out the said power of attorney. When this Court Page 15 of 21 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:52:06 IST 2025 NEUTRAL CITATION R/SCR.A/3701/2013 CAV JUDGMENT DATED: 21/07/2025 undefined had earlier directed the Investigating Agency to carry out further investigation under Section 173(8) of Cr.P.C. and to find out the power of attorney in question and it is reported after investigation that such power of attorney could not be found out, there is no point in oldering further investigation time and again for the very same purpose. Hence, the present application being devoid of any merit, the same is hereby dismissed."
13. It appears that complainant intends that investigation be carried out in particular way he is thinking and as per his point of view. The complainant who has conveniently compromised with purchasers with regard disputed property and consented to quash the FIR, did to seek further investigation against seller. Noticeably, sale deed executed in favour of the purchasers of the disputed land who are accused is approved and ratified. Complainant by giving consent in quashing proceedings still questions power of attorney through which registered sale deed is executed as forged one. It is also noticeable that order dated 09.07.2010 passed by Cor-ordinate Bench in Cr.M.A.No.5154 of 2010 is missing from averments in first and second application. At this stage, it is relevant to refer order passed by Co-ordinate Bench on 09.07.2010 in Cr.M.A.No.5154 of 2010, whereby, questioned FIR was quashed in favour of some of the accused (sic : purchaser of disputed land). It reads as under :-
"The petitioner is the original accused no.3. Against him and other family members, his brother has filed complaint AnnexureA being C.R. No.I228/2005 registered before Pandeshara police station, Surat.
Counsel appearing for parties stated under Page 16 of 21 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:52:06 IST 2025 NEUTRAL CITATION R/SCR.A/3701/2013 CAV JUDGMENT DATED: 21/07/2025 undefined instructions that dispute between two brothers have been resolved. The petitioner is not attributed with the fabrication of power of attorney of the complainant. The petitioner was not aware about any such attempt. Affidavit is filed by the complainant suggesting that complainant is not interested in proceeding charge against the petitioner.
In view of the fact that dispute is between close family members and in view of settlement between the parties, I see no useful purpose would be served in permitting further investigation and trial into the allegations against present petitioner. Fact however, remains that complainant had put the State machinery into motion making allegations of commission of of criminal offences against the present petitioner and others. It was perhaps on account of this criminal case that parties could arrive at settlement. They must therefore, pay cost to the State.
Under the circumstances, complaint AnnexureA being C.R. No.I228/2005 registered before Pandeshara police station, Surat, is quashed qua the present petitioner, however, on condition that petitioner and respondent no.2 shall pay jointly sum of Rs. 15,000/ to the State, which shall be done within two weeks from today.
Disposed of accordingly."
14. Explicitly, in nutshell it is an attempt of the petitioner not to complete trial. Attempt of the petitioner is also found against principle of fair trial. The petitioner who continued to file Page 17 of 21 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:52:06 IST 2025 NEUTRAL CITATION R/SCR.A/3701/2013 CAV JUDGMENT DATED: 21/07/2025 undefined application before the learned Trial Court intended not to allow learned Trial Court to complete trial against accused.
15. It is undoubted that to ensure fair investigation or fair trial, Constitutional Court under Article 226 or Article 32 can pass order for further investigation / re-investigation or de-novo investigation. However, such extraordinary power must be exercised with great caution. (See : Himanshu Kumar v/s. State of Chhattisgarh [2022 (0) SCC Online 884].
16. In para - 9 of the case of Anant Thanur Karmuse (supra), Hon'ble Apex Court after referring case of Vinubhai Malviya (supra) held that power of learned Magistrate to issue order of further investigation would be limited till stage of trial commences. Para 9 reads as under :-
"9. Now, so far as the reliance placed upon the decision of this Court in the case of Vinubhai Haribhai Malviya and Ors. (supra), relied upon on behalf of the respondent - accused is concerned, it is required to be noted that in the said decision, this Court was considering the powers of the Magistrate. Even in the said decision, it is observed and held that there is no good reason given by the Court as to why a Magistrate's powers to order further investigation would suddenly cease upon process being issued. It is further observed that power of the police to further investigate the offence continues right till the stage the trial commences. It is further observed that Article 21 of the Constitution demands no less than a fair and just investigation. In paragraph 42 as such, it is observed and held 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 Page 18 of 21 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:52:06 IST 2025 NEUTRAL CITATION R/SCR.A/3701/2013 CAV JUDGMENT DATED: 21/07/2025 undefined before the Magistrate, while concomitantly, the power of the police 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 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 Page 19 of 21 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:52:06 IST 2025 NEUTRAL CITATION R/SCR.A/3701/2013 CAV JUDGMENT DATED: 21/07/2025 undefined 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 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."
17. In the present case, as it is undeniable that when first application was made before the learned Trial Court seeking relief of further investigation, the matter had travelled beyond stage of framing of charge and trial had already commenced, yet learned Sessions Court has passed order for further investigation but ultimately further investigation did not yield any result. Again second round of litigation was started, but petitioner remained unsuccessful. To be noted that in both round the petitioner has suppressed order of Co-ordinate Bench passed in Special Criminal Application No.5154 of 2010 and now except Investigating Officer and complainant, no other witness are to be examined. All this facts conclude that learned Courts below have not committed any error in passing impugned orders.
18. Case of Anant Karmuse (supra) defines power of Constitutional Court to pass order for further investigation / re-
Page 20 of 21 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:52:06 IST 2025NEUTRAL CITATION R/SCR.A/3701/2013 CAV JUDGMENT DATED: 21/07/2025 undefined investigation or de-novo investigation, it would not render any assistance to petitioner's case, as it is essentially challenge decline to pass order for further investigation by learned JMFC in case where trial was already commenced.
19. In premises of aforesaid, this Court find no reason to interfere with the impugned orders as non of the orders impugned in the matter lead to miscarriage of justice.
20. In view of above, the petition fails and accordingly, stands dismissed. Rule is discharged. Interim relief granted earlier, if any, stands vacated. Consequently, Criminal Misc. Application No.1 of 2018 for stay does not survive and accordingly, stand disposed of.
(J. C. DOSHI,J) SATISH Page 21 of 21 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jul 22 2025 Downloaded on : Tue Jul 22 21:52:06 IST 2025