Bombay High Court
Souvik Renupada De vs The State Of Maharashtra on 21 November, 2022
Bench: Amit Borkar
Tauseef Farooqui 02-WP.4537.2021.odt
TAUSEEF
LAIQUEE
FAROOQUI IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Digitally signed by
TAUSEEF LAIQUEE
FAROOQUI
Date: 2022.11.25
10:25:48 +0530
CRIMINAL WRIT PETITION NO.4537 OF 2021
Souvik Renupada De ...Petitioner
V/s.
The State of Maharashtra ...Respondent
*****
Mr. Aabad Ponda, Senior Advocate a/w Mr. Sumit Krishna Kumar
Tiwari for Petitioner.
Mr. R. M. Pethe, APP for Respondent (State).
*****
CORAM : AMIT BORKAR, J.
DATE : NOVEMBER 21, 2022
P.C.:
1. The order challenged in the Writ Petition is rejection of
Application of the petitioner under Section 173(8) of the Code of
Criminal Procedure, 1973 to further investigate in relation to FIR
No.469 of 2019 registered with Nerul Police Station for offence
under Sections 376(1), 417, 500 read with 34 of Indian Penal
Code, 1860.
2. The basis of the Application under Section 173(8) of
Code of Criminal Procedure, 1973, was that there was consensual
sex between the victim and the accused and, therefore, it needs to
be investigated on the basis of material already on record in the
form of seized cell phone. After the filing of charge-sheet,
therefore, the accused filed an Application before the learned
Sessions Judge seeking further investigation to bring on record
Tauseef Farooqui 02-WP.4537.2021.odt
transcript of conversation between the accused and the
complainant. According to the petitioner to substantiate his
defence and for the purpose of transparent and fair investigation,
further investigation as contemplated under Section 173(8) of
Code of Criminal Procedure, 1973 needs to be allowed.
3. Learned Sessions Judge by the impugned order has
rejected the Application holding that the investigating officer has
made detailed investigation in the matter and collected true facts
and data through the evidence of witnesses which mentioned in
the charge-sheet and there is no need for further investigation.
The accused has therefore filed present Petition challenging the
said order.
4. Learned senior advocate appearing for the petitioner
invited my attention to the relevant extracts of the transcript of
record which according to the accused are between the victim and
the accused. He submitted that for just and fair trial of the
accused, impartial investigation is essential. It is one of the facet of
the right under Section 173(8) of investigating agency to have just
and fair investigation. In support of his submission, he relied on
the unreported Judgment of the Single Judge of this Court in
Criminal Writ Petition No.208 of 2014 in the case of Datta Achyut
Kothavale Vs. State of Maharashtra decided on 28th February 2014
and the Judgment of the Apex Court in the case of Vinubhai
Haribhai Malaviya Vs. State of Gujarat, reported in ((2019) 17
SCC 1).
Tauseef Farooqui 02-WP.4537.2021.odt
5. Per contra, learned APP submits that such Application
under Section 173(8) of Code of Criminal Procedure, 1973, was
not maintainable. If the accused wants to bring on record the
transcript between the victim and the accused, only remedy
available for is to file an Application under Section 91 of Code of
Criminal Procedure, 1973.
6. Having considered the submissions on behalf of both
sides in my opinion, the issue involved in the Petition is fairly
covered by the Judgment of Single Judge of this Court in the case
of Datta Achyut Kothavale Vs. State of Maharashtra.
7. Learned Single Judge of this Court after considering
the Judgment of Apex Court in the case of Ramlal Narang Vs. State
(Delhi Administration) reported in (1979(2) SCC 322) in
paragraph nos.7 and 8 held as under:
"7) No doubt, article 21 of the Constitution of India vests in every
accused the right to demand a fair trial. This right which is
fundamental in nature, casts a corresponding duty on the part of the
State to ensure a fair trial. For the State is to ensure a fair trial, it must
ensure a fair trial investigation. A fair investigation would include a
complete investigation. A complete investigation would mean an
investigation which looks into aspects of acquisition put it in favour of
the accused or against him. Plain reading of section 173 (8) of Code of
Criminal Procedure, 1973, inconsonance with Article 21 of the
Constitution, it can be said that accused has a right to fair trial. It
would thus, be necessary to bring on record a conversation between
the accused and the victim in order to substantiate his case that it is
rather a case of consensual sex.
Tauseef Farooqui 02-WP.4537.2021.odt
8) Plain reading of section 173 (8) would indicate that there is
nothing in the section which bars further investigation at the behest of
the accused. In the case of Ramlal Narang(cited supra), Hon'ble Apex
Court has also recognized a right of the accused for a fair investigation.
It would be erroneous to presume that section 173 (8) contemplates
investigation only at the behest of the complainant, prosecuting
agency, etc. There is nothing in the section to infer that it does not cast
a right upon the accused to seek further investigation in the interest of
justice."
8. Having considered the facts of situation of the case of
Datta Achyut Kothavale Vs. State of Maharashtra, which in my
opinion is similar to the fact situation of the present case, in my
opinion, the similar order needs to be passed in the present case.
In that view of the matter, I pass following order:-
(i). The impugned judgment and order dated 21 st
September 2021, passed below Exhibit-3 in Sessions
Case No.142 of 2020 is quashed and set aside.
(ii). The Application below Exhibit-3 for further
investigation is allowed.
(iii). The investigating officer shall take necessary steps to
further investigate into the aspects as mentioned in
the Application and to file supplementary report
alongwith copies of transcript of conversation
between the victim and the accused within eight (8)
weeks from today.
Tauseef Farooqui 02-WP.4537.2021.odt
(iv). Till the receipt of supplementary report, further
proceedings of Sessions Case No.142 of 2020
pending before the Additional Sessions Judge, Thane
shall remain stayed.
(v). The copy of supplementary report alongwith copies
of transcribe shall be included in the list of
documents to be given to the accused and
complainant under Section 294 of Code of Criminal
Procedure, 1973.
(vi). Rule is made absolute in the above terms. Writ
Petition is disposed of. No Costs.
(AMIT BORKAR, J.)
