Vaibhav Bipinbhai Tamboli vs State Of Gujarat
2021 Latest Caselaw 5992 Guj

     R/CR.MA/5960/2021                                ORDER DATED: 15/06/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 5960 of 2021

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                         VAIBHAV BIPINBHAI TAMBOLI
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR MAHESH JETHMALANI, SR. ADVOCATE with ADITYA A CHOKSI(7835) with
MR AJAYKUMAR CHOKSI(1853) with MR BHAVESH B CHOKSHI(3109) for the
Applicant(s) No. 1,2
MS M D MEHTA, APP for the Respondent(s) No. 1
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 CORAM: HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                              Date : 15/06/2021
                               ORAL ORDER

1. Heard learned Senior Advocate Mr. Mahesh Jethmalani with learned Advocate Mr. A.C. Choksi and learned Advocate Mr. B.B. Choksi for the applicants, learned APP Ms. M.D. Mehta for the respondent-State. Learned Senior Advocate Mr.I.H. Syed with learned Advocate Mr. Rahil Jain have requested permission to be heard on behalf of the victim, who is not joined as a party herein. At this stage it is clarified that the victim/complainant is not named in the order to respect her privacy. It is further clarified that the term victim is used for the sake of convenience and it may not be construed otherwise.

2. By way of this application the applicants pray for quashing and setting aside the impugned judgment dated 16.03.2021 passed by the learned 6th Additional Sessions Judge, Bhavnagar in Criminal Revision Application No.16 of 2021 whereby the order passed by the learned 3rd Additional Chief Judicial Magistrate, Bhavnagar dated 02.03.2021 rejecting addition of Sections in an FIR lodged against the applicants has been rejected.

3. It appears that applicant No.1 is Director of M/s. Tamboli Casting

R/CR.MA/5960/2021 ORDER DATED: 15/06/2021

Limited, a company located at Vartej, District Bhavnagar, whereas applicant No.2 is Chairman of the company and father of applicant No.1. That victim an ex-employee of the company who was working in a position of Assistant Manager, Exports and was a Venezuelan citizen had registered a complaint on the E-portal of the State CID Crime, Gandhinagar alleging offence of rape and assault by the applicant No.1 on 30.12.2020. Later, the said victim filed a complaint/application in physical form with the State CID Crime, Gandhinagar on 04.01.2021. The said victim had thereafter registered an FIR on 19.01.2021 against the applicants herein being C.R. No. 11198067210046 of 2021 before the Vartej Police Station, District Bhavnangar for the offence punishable under Sections 354-C of the Indian Penal Code (for short "IPC") and Sections 67 and 67A of the Information and Technology Act, 2000 (for short "the IT Act").

4. Upon an application made by the said victim to the Director General of Police, Gujarat State, the FIR referred to hereinabove for offence punishable under Section 354C of IPC and Sections 67 and 67A of the IT Act had been transferred from Vartej Police Station to CID, Crime and Railways vide order dated 22.01.2021. Since the victim had also sought for transfer of the complaint/application which was filed with the State CID Crime and which was later transferred as preliminary inquiry to Vartej Police Station and since the same had not been transferred by the Director General of Police, therefore a Writ Petition being Special Criminal Application No.2014 of 2021 had been preferred before this Court requesting for transfer of the complaint filed with the CID Crime alleging offence punishable under Section 376 of IPC to an independent agency and whereas the said petition came to be withdrawn in view of report submitted by the State Government, that application dated 30.12.2020 alleging offence punishable under Section 376 of the IPC is also transferred to the DG, CID Crime and Railways, Gujarat State.

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5. That the investigating officer of criminal complaint being FIR No.11198067210046 of 2021 for the offence punishable under Section 354- C of IPC and 67 and 67A of the IT Act had moved an application dated 02.03.2021 for addition of offence under Section 376 and 506(2) of IPC and whereas vide order dated 02.03.2021, the learned 3rd Additional Chief Judicial Magistrate, Bhavnagar had been pleased to reject such application. The said order came to be challenged before the learned Sessions Court by the investigation officer whereas vide order dated 16.03.2021, the learned 6 th Additional Sessions Judge, Bhavnagar had been pleased to set aside the order passed by the learned 3rd Additional Chief Judicial Magistrate and directed that the application for addition of offence punishable under Sections 376 and 506(2) of IPC to be "kept with FIR". The said order has been impugned before this Court.

6. Learned Senior Advocate Mr. Jethmalani has submitted that the applicants having been joined as party in the revision application, and therefore it was incumbent upon the learned Sessions Court to have given an opportunity of hearing to the applicants. Learned Senior Advocate has further relied upon the decisions of the Supreme Court in case of Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel reported in (2012) 10 SCC 517 as well as in case of Raghu Raj Singh Rousha v. Shivam Sundarram Promotors Private Limited and another reported in (2009) 2 SCC 363 and submitted that by virtue of Section 401(2) of the Criminal Procedure Code the accused have been given right of being heard before the revisional court to defend an order which operates in his favour. Learned Senior Advocate has further submitted that the investigation officer had misled the Sessions Court, more particularly since the allegations of offence punishable under Sections 376 and 506(2) of IPC and allegations of commission of offence punishable under Section 354-C and Sections 67 and 67A of the IT Act, which culminated into an

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FIR were two different transactions and were not part of the same transaction. It is further submitted that for offence punishable under Sections 376 and 506(2) of IPC a written application had been registered with the CID Crime on 30.12.2020 which resulted into preliminary inquiry and whereas so far as the Sections 354-C of IPC and 67 and 67A of the IT Act are concerned, an FIR came to be registered on 19.01.2021. It is submitted that since the allegations for offence punishable under Sections 376 etc. of IPC are prior to the date of occurrence of offence punishable under Section 354-C etc, the investigating officer ought not to have applied for adding offence under Section 376 and 506(2) of IPC in the criminal complaint registered for offence under Section 354-C and etc.

7. On the other hand, learned APP Ms. M.D. Mehta for the respondent- State has submitted that the investigating officer concerned of the criminal complaint registered with the Vartej Police Station and transferred to CID Crime for offence punishable under Section 354-C of IPC and Sections 67 and 67A of the IT Act was also entrusted with the preliminary inquiry registered by the victim for offence punishable under Sections 376 and 506(2) of IPC. It was further submitted that having collected appropriate material it was open for the investigating officer to request for addition of offence in the FIR already registered. It was further submitted that the learned Magistrate considering an application for addition of offence in criminal complaint already registered is not required to apply his mind whether to accept the report or not and whereas there is a distinction between report for adding of sections in the FIR at the initial stage and final report after conclusion of investigation. Thus submitting learned APP had requested that the present case does not merit any interference by this Court.

8. Learned Senior Advocate Mr. I.H. Syed with learned Advocate Mr.

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Rahil Jain appearing for the victim who is not joined in the present application are permitted to be heard since the present application is being heard along with the Special Criminal Application No.3393 of 2021 where the FIR being C.R. No.11198067210046 of 2021 for offence punishable under Section 354-C of IPC and Sections 67 and 67A of the IT Act has been impugned, where the learned Senior Advocate has been heard on behalf of the complainant therein, who is victim herein. Learned Senior Advocate has relied upon the decision of this Court (Coram: M.R. Shah,J) in case of Vijaybhai Malabhai Bharwad and others v. State of Gujarat rendered in Special Criminal Application Nos. 1352, 1353 and 1354 of 2007, dated 01.08.2007. Relying upon the said decision, it is submitted that this Court in similar situation had held that the accused are not required to be heard at the stage of report being submitted by the investigating officer to the Magistrate for adding of sections in a complaint already registered. That the Magistrate is not required to consider any other things till the final report is submitted after conclusion of the investigation by the investigating officer and it is only on that stage the Magistrate has to apply his mind.

9. Considering the submissions made by learned Advocates for the parties, this Court is of the prima facie opinion that the allegations levelled in the application registered with the CID Crime for offence punishable under Sections 376 and 506(2) of IPC and allegations levelled in the criminal complaint alleging offence punishable under Section 354-C of IPC and Sections 67 and 67A of the IT Act do not form part of the same transaction and whereas most importantly the fact of allegations for offence punishable under Sections 376 and 506(2) of IPC being prior in point of time and the same being inquired into by way of preliminary inquiry, were neither brought to the notice of the Magistrate or the Sessions Court, as the case may be.

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10. This Court is of the prima faice opinion that the investigating officer had committed an error by not brining this very important aspect to the notice of the Courts below. Furthermore, this Court is also of the prima facie opinion that in case after inquiring into the allegations levelled by the victim in the application registered before the CID Crime, the alleged offence punishable under Sections 376 and 506(2) of IPC, if the investigating officer was of the opinion that allegations prima faice constitute commission of cognizable offence, then a separate FIR ought to have been registered and whereas allegations for offence which had allegedly occured prior in point of time and which are not part of the same transaction ought not to have been attempted to be added in a criminal complaint registered later that too without bring out the facts in totality before the learned Magistrate or the learned Revisional Court.

11. In view of the prima facie observations hereinabove, the following order is passed :

Rule returnable on 20.07.2021.

The impugned judgment and order dated 16.03.2021 passed by the learned 6th Additional Sessions Judge, Bhavnagar in Criminal Revision Application Nos. 16 of 2021 and 18 of 2021 is hereby stayed.

(NIKHIL S. KARIEL,J) BDSONGARA