Gujarat High Court

Maulikbhai Vallabhbhai Ghetiya vs State Of Gujarat on 9 July, 2021

Bench: Gita Gopi

     R/SCR.A/8390/2019                           JUDGMENT DATED: 09/07/2021




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/SPECIAL CRIMINAL APPLICATION NO. 8390 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE GITA GOPI

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1      Whether Reporters of Local Papers may be
       allowed to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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                     MAULIKBHAI VALLABHBHAI GHETIYA
                                 Versus
                            STATE OF GUJARAT
=============================================
Appearance:
MR TEJAS M BAROT(2964) for the Applicant(s) No. 1
MS MONALI BHATT APP for the Respondent(s) No. 1
=============================================

CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                            Date : 09/07/2021

                            ORAL JUDGMENT

1. Rule. Learned APP waives service of notice of

Rule on behalf of respondent Stage. With the consent of

learned advocates on both the sides, the matter is heard

today finally.

R/SCR.A/8390/2019 JUDGMENT DATED: 09/07/2021

2. This petition has been filed under Article 226 of

the Constitution of India as well as Section 482 of the

Code of Criminal Procedure, 1973 (hereinafter referred to

as the 'Cr.P.C.' for short) praying to pass appropriate

order, writ or direction, directing the I.O. of Morbi

Taluka Police Station to carry out further investigation in

connection with I-C.R. No.152/2017 on the ground that

there was no investigation to the commission of offences

under Sections 326 and 457 of IPC.

3. Ms. Riya Choksi, learned advocate for Mr.Tejas

M.Barot, learned advocate for the petitioner, submits that

the petitioner in the present petition has challenged the

inaction on the part of the Investigating Officer, who was

to carry out the investigation properly, honestly,

impartially and ought to do his duty without being bias.

There is sheer failure on the part of the investigating

agency in carrying out honest investigation, which has

laid the accused being charged with far lesser and less

serious offences and under the circumstances the

prosecution was not in a position to bring home the

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appropriate charges against the accused which would

ultimately lead to failure of justice.

3.1 Advocate Ms. Riya Choksi submitted that, the

petitioner is complainant to the F.I.R. being I-C.R.

No.152/2017 registered with Morbi Taluka Police Station,

who is engaged in the business of plastic and is running

factory in the name of Pruthvi Plast Industry at Shivam

Estate, Morbi. She submitted that on 01.10.2017, the

petitioner was present at his factory and at that time,

accused Sanjaybhai Patel of Krishna Print Pack,

approached the petitioner by threatening and abusing

him, and thereafter about 4:15 p.m., when the petitioner

was present with his father and uncle, at that time

accused Sanjay Patel his partner Ashwinbhai Patel and

Haribhai Patel, came at his factory armed with baseball

bat, hockey, pipe and abused him by questioning as to

why he has filed an application before the Pollution

Department against the accused. The father and uncle of

the petitioner tried to pacify him, Haribhai Patel inflicted

injury on the head of the petitioner with baseball bat,

Ashwinbhai Patel inflicted injury with baton on the right

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shoulder of the petitioner and other accused persons

started giving indiscriminating blows to the petitioner

and when the father and uncle of the petitioner tried to

intervene, accused - Sanjaybhai inflicted injury on the

head of the petitioner with pipe and another accused

named Sanjay and Hiteshbhai Patel injured father of the

petitioner with stick and thereafter again Haribhai Patel

and his partner caused injury with baseball bat and pipe

to petitioner and subsequently about five to seven

persons from the factory of the accused attacked the

petitioner, administered threat and thereafter left the

premises.

3.2. Ms. Riya Choksi, learned advocate, stated that

the police filed the F.I.R. being I-C.R. No.152/2017 at

Morbi Taluka Police Station under Sections 324, 504,

506(2), 147, 148 and 149 of I.P.C. read with Section 135

of the Gujarat Police Act. Advocate Ms. Choksi, submitted

that serious injuries were caused to the petitioner who

was admitted at Samarpan Hospital as an indoor patient

and thereafter referred to Pioneer Hospital at Rajkot. The

Investigating Officer, for the reasons best known to him,

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booked the accused for lesser offences and did not bother

to investigate and collect materials from the hospitals

from where the petitioner took treatment; further did not

collect any CCTV footage of the premises of Pruthvi Plast

Industry. The premises belonged to the petitioner and no

other witnesses have been cited by the Investigating

Officer, which overall shows the partial and bias approach

of the Investigating Officer favouring the accused and

thereby damaging the case of the prosecution and

strengthening the accused.

3.3. Ms. Choksi, learned advocate, relied on the

judgment in case of Kishan Lal Vs. Dharmendra Bafna

And Another, reported in (2009) 7 SCC 685, to submit

that the Investigating Officer may exercise its statutory

power for further investigation, in a position where, new

facts come to his notice and when certain aspect of the

matter has not been considered by him, and finds further

investigation is necessary to be carried out from a

different angle keeping in view, the fact that new or

further materials came to his notice. She submitted that

on the said grounds, even the learned Magistrate or

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the superior Courts can direct further investigation if the

investigation is found to be tainted and/or otherwise

unfair or is otherwise necessary in the ends of justice.

4. Ms. Monali Bhatt, learned APP for the

respondent State, submitted that the present application

is not maintainable. Referring to the judgment in case of

Amrutbhai Shambhubhai Patel Vs. Sumanbhai

Kantibhai Patel and Ors., reported in (2017) 4 SCC

177, Ms. Bhatt, submitted that the learned Chief Judicial

Magistrate, Morbi having rightly considered the scope

under Section 173(8) Cr.P.C., has passed the order below

Exhibit-21 in Criminal Case No.4432 of 2017.

4.1 Ms. Monali Bhatt, submits that the

Investigating Officer is empowered to undertake further

investigation desirably after informing the Court

concerned before whom he has to submit its report, but

no such power is available to the learned Magistrate after

the cognizance has been taken on the basis of the earlier

report, and on issuance of the process the accused have

entered appearance, the Magistrate would lose the

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power. The cause would be open for the Magistrate on

the request by the investigating agency, if circumstances

warranting further investigation on detection of material

evidence.

4.2 Learned APP, Ms. Bhatt, submitted that the

Magistrate would have power to direct further

investigation under Section 156(3) Cr.P.c. at the pre-

cognizance stage, even after a charge-sheet or a closure

report is submitted, but once cognizance is taken and

accused person appear pursuant thereto, the Magistrate

would be bereft of any competence to direct further

investigation either suo motu or acting on the request or

prayer of the complainant / informant. Ms. Monali Bhatt

submitted that the only recourse available to the

complainant would be to offer evidence during the trial

and thus when the learned Chief Judicial Magistrate has

rightly rejected the application, Exhibit-21, of the

complainant, there would be no scope for entertaining the

present petition and thus submitted to reject the same.

5. Heard learned advocates for both the sides and

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perused the material on record. The learned Chief

Judicial Magistrate in its order below Exhibit-21 in

Criminal Case No.4432 of 2017, has observed that the

accused were arrested and the charge came to be framed

against them on 19.12.2017. At the stage of trial for

recording evidence, on 23.03.2018, the complainant had

moved an application under Section 173(8) Cr.P.C. for

further investigation, relying on the proposition laid down

by the Hon'ble Apex Court in case of Amrutbhai

Shambhubhai Patel (supra), the learned trial Court

rejected the application of the complainant.

5.1 The Hon'ble Apex Court in case of Amrutbhai

Shambhubhai Patel Vs. Sumanbhai Kantibhai Patel and

Ors. (supra), in paragraph no.51 held as under:

"51. 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,

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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 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

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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 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."

5.2 The above decision of the Hon'ble Apex Court

explained the scope and ambit of the powers granted to

the Investigating Officer even after at a stage when the

report is filed under sub-section (2) of Section 173 Cr.P.C.

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to the Magistrate. It has been laid down in Section 173(8)

that, "even after filing of the charge-sheet, 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 under the

Code."

5.3 The allegation by the present petitioner, who is

complainant to the F.I.R., is to the effect that the

Investigating Officer has not collected medical evidence

from Samarpan Hospital and Pioneer Hospital at Rajkot,

where the petitioner had taken the treatment. It is also

alleged that the Investigating Officer has not collected

the C.C.T.V. footage from Pruthvi Plast Industry to

corroborate the say of the petitioner that the accused

armed with baseball bat, hockey and pipe had inflicted

serious injuries which would attract the ingredients under

Sections 326 and 457 IPC, since the accused had entered

the premises belonging to the complainant for the offence

of trespassing.

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5.4 It becomes clear that the complainant had

given the facts of incident to the police. The F.I.R. was

registered and it is obvious that since it is a medico legal

case, the injured would have been taken to Civil Hospital

run by the State and if necessary on the advise of Doctor

of Civil Hospital, the injured would have been taken to

private hospitals and during the course of medical

treatment certainly, the same would have come to be

known to the police and during the course of the

investigation the police would have recorded the

statement of the witnesses. As observed by the Chief

Judicial Magistrate, the charge-sheet has been filed and

the charges were framed, and the stage of the trial is

recording of evidence of the complainant. If during the

course of the recording of evidence, any facts which have

not been noted during the investigation or any material

witnesses not relied upon by the prosecution and it comes

to the knowledge of the Court during any stage of the

inquiry, trial and proceedings under the Code, then under

Section 311 Cr.P.C. the concerned Court is empowered to

summon any person as a witness, or examine any person

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in attendance, though not summoned as a witness, or

recall and re-examine any person already examined; thus

it is crystal clear that the Court has been empowered to

summon any person or any witness at any stage of the

trial. It is well settled in law, if the conditions under

Section 311 Cr.P.C. are satisfied, the Court can call a

witness not only on the motion of either the prosecution

or the defence, but can also do so on its own motion.

Thus, when the charge has already been framed by the

trial Court and the process is now for recording of

evidence, the complainant would have all the

opportunities to produce the relevant documents to bring

to the notice of the trial Court, for invoking the power

under Section 311 Cr.P.C.

6. The case of Amrutbhai Shambhubhai Patel Vs.

Sumanbhai Kantibhai Patel and Ors. (supra), has been

followed in the case of Athul Rao Vs. State Of

Karnataka & Another, reported in (2018) 14 SCC 298.

The Hon'ble Apex Court in paragraphs 9 and 14 of the

said judgment held as under:

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"9. The respondent No. 2 is not the complainant. The complaint in question was instituted by the mother of respondent no. 2. She was not the applicant. In any case, at the instance of respondent no. 2, it was not open to the Court to direct further investigation as the Trial Court had already framed charges and taken cognizance of the case against the appellant who appeared before it in the said proceedings. The prayer for further investigation was not at the instance of the investigating agency nor on the ground of detection of material evidence.

14. Suffice it to observe that merely because liberty was given to respondent no.2 by the High Court in the judgment dated 21 st October, 2013, it would not follow that the Trial Court was obliged to issue directions for further investigation at the instance of respondent no. 2 and sans recording satisfaction that further investigation was necessary in the fact situation of the case. On the other hand, the Trial Court has given tangible reasons why further investigation was not necessary, which have not been analysed by the High Court at all, much less overturned."

7. Section 311 and Section 319 of the Cr.P.C. are

the salutary provision which give power to the trial Court.

Section 311 is the power to summon material witnesses,

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or examine person present, while under Section 319 if

during the course of the trial, it appears from the

evidence that a person who committed an offence has not

been made an accused, then the trial Court may proceed

against such other persons appearing to be guilty of

offence.

7.1 Here in this case, the petitioner has agitated

about medical evidence in the form of treatment taken at