Gujarat High Court
Dipak Anilbhai Parbhare vs State Of Gujarat on 7 October, 2021
Bench: Ilesh J. Vora
R/SCR.A/21/2021 ORDER DATED: 07/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 21 of 2021
With
CRIMINAL MISC.APPLICATION (FIXING DATE OF EARLY HEARING) NO.
1 of 2021
In R/SPECIAL CRIMINAL APPLICATION NO. 21 of 2021
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DIPAK ANILBHAI PARBHARE
Versus
STATE OF GUJARAT
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Appearance:
MR YOGESH LAKHANI, SR ADVOCATE ASSISTED BY MR. RAHUL R
DHOLAKIA(6765) for the Applicant(s) No. 1,2,3,4,5,6
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2
MR MITESH AMIN, PP WITH MS SS PATHAK APP for the Respondent(s)
No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 07/10/2021
ORAL ORDER
1. By way of this petition under Articles 226 and 227 of the
Constitution of India, read with Section 482 of the Code of
Criminal Procedure, the petitioners seek to challenge the order
dated 08.12.2020 passed by the learned 2nd Additional Sessions,
Surat at Bardoli, whereby, the "C" summary report submitted by
the Investigating Agency was rejected and direction was given that
let the investigation be conducted by the Officers of the Anti-
corruption Bureau and submit its report in a reasonable time.
2. Heard learned Senior counsel Mr. Yogesh Lakhani, assisted by Mr.
Rahul R. Dholakia, learned advocate for the petitioners and Mr.
Mitesh Amin, learned Public Prosecutor assisted by Mrs. SS.
Pathak, learned APP for the respondent State.
R/SCR.A/21/2021 ORDER DATED: 07/10/2021
3. The learned Senior Counsel assailing the impugned order would
submit that the impugned order is not in consonance with the
provisions of Section 17 of the Prevention of Corruption Act
(hereinafter referred to as 'the Act' for short). Referring Section 17
of the Act, he would submit that the provision itself provides for
the investigation in connection with an offence registered under the
provisions of the Act, to be investigated by an officer of Deputy
Superintendent of Police or officer of equivalent rank. In this
context, he would submit that in the 0present case, the
investigation was carried by an officer of the rank of Asst.
Commissioner of Police which is higher than the officers stipulated
in the Act.
4. Placing reliance on the case of Vinay Tyagi Vs. Irshad Ali @
Deepak (2013) 5 SCC 762, learned Senior Counsel would submit
that the trial Court has no power to direct reinvestigation or fresh
investigation (denovo) in a case, initiated based on police report.
Thus, he would urge that the learned trial Court has exceeded its
jurisdiction while issuing the direction to reinvestigate and/or
denovo investigation.
5. On the other hand, learned Public Prosecutor would submit that the
learned trial Court has rightly rejected the report of "C" summary
and directed the authority to initiate the investigation by the
officers of the Anti-corruption Bureau.
6. Heard the learned counsel for the respective parties and perused the
materials placed on record and impugned order.
R/SCR.A/21/2021 ORDER DATED: 07/10/2021
7. Having considered the submissions advanced by learned counsel
for the respective parties and impugned order, it appears that the
respondent no. 2 lodged an FIR being III. CR No. 789 of 2016
dated 27.09.2016 registered with Kadodara GIDC Police Station,
for the offences punishable under Section 97A of the Gujarat
Prohibition Act and thereafter, Investigating Agency was pleased
to file report before the learned Magistrate to add section 13(1)(D-
2) of the Prevention of Corruption Act and petitioners have been
arraigned as accused in the alleged FIR; that the investigation was
transferred to Commissioner of Police, Surat and he had entrusted
the investigation to Asst. Commissioner of Police, "F" Division,
Surat on 09.11.20216; that the Asst. Commissioner of Police filed
"C" summary report before the Judicial Magistrate First Class; that
vide order dated 03.05.2017 the Judicial Magistrate observed that
the Court has no jurisdiction in the aforesaid case and referred the
matter to Special Court (ACB); that the learned 2 nd Addl. Sessions
Judge, Surat at Bardoli, rejected the "C" summary report and
directed the Police Commissioner to investigate the matter through
Officers of the Anti-corruption Bureau.
8. The issue raised in the present case is no longer res-intigra.
However, it is useful to refer the observations made by the Apex
Court in the case of Vinay Tyagi (supra). The relevant para-21
reads thus :
"21. Referring to the provisions of Section 173 of the Code,
the Court observed that the police has the power to conduct
further investigation in terms of Section 173(8) of the Code
but also opined that even the Trial Court can direct further
investigation in contradistinction to fresh investigation, even
where the report has been filed. It will be useful to refer to
R/SCR.A/21/2021 ORDER DATED: 07/10/2021
the following paragraphs of the judgment wherein the Court
while referring to the case of Mithabhai Pashabhai Patel v.
State of Gujarat (supra) held as under:
"13. It is, however, beyond any cavil that 'further
investigation' and 'reinvestigation' stand on different
footing. It may be that in a given situation a superior
court in exercise of its constitutional power, namely,
under Articles 226 and 32 of the Constitution of India
could direct a 'State' to get an offence investigated
and/or further investigated by a different agency.
Direction of a reinvestigation, however, being
forbidden in law, no superior court would ordinarily
issue such a direction. Pasayat, J. in Ramachandran v.
R. Udhayakumar (2008) 5 SCC 513 opined as under:
(SCC p. 415, para 7) '7. At this juncture it would be
necessary to take note of Section 173 of the Code.
From a plain reading of the above section it is evident
that even after completion of investigation under sub-
section (2) of Section 173 of the Code, the police has
right to further investigate under sub-section (8), but
not fresh investigation or reinvestigation.'
A distinction, therefore, exists between a
reinvestigation and further investigation.
XXX XXX XXX
15. The investigating agency and/or a court exercise
their jurisdiction conferred on them only in terms of
the provisions of the Code. The courts subordinate to
the High Court even do not have any inherent power
under Section 482 of the Code of Criminal Procedure
or otherwise. The precognizance jurisdiction to
remand vested in the subordinate courts, therefore,
must be exercised within the four corners of the
Code."
9. In light of the aforesaid principles and considering the facts of the
present case, it appears that the learned trial Court while rejecting
R/SCR.A/21/2021 ORDER DATED: 07/10/2021
the "C" summary report, directed the Police Commissioner, Surat
to investigate the case through Officers of the Anti-corruption
Bureau. A bare perusal of the impugned order, reveals that the
learned trial Court has directed reinvestigation and/or fresh
investigation to investigate the matter through officers of Anti-
corruption Bureau. The trial Court cannot direct for fresh denovo
investigation. However, at the most, court can direct the authority
for further investigation.
10. In the case of Minukumari & another Vs. State of Bihar and
others, reported in (2006) 4 SCC 359, the Apex Court explained
the powers that are vested in a Magistrate, upon filing a report in
terms of Section 173(2)(i) and the kind of order, that can be passed.
The Apex Court further held that when a report is filed before a
Magistrate, he may either (i) accept the report and take cognizance
of the offences and issue process; or (ii) may disagree with the
report and drop the proceedings; or (iii) may direct further
investigation under Section 156(3) and require the police to make a
further report.
11. In view of the aforesaid facts and circumstances of the present
case and non-specific direction by the learned trial Court, without
entering into the merits of the case, the impugned order dated
08.12.2020 passed by the learned 2nd Additional Sessions, Surat at
Bardoli, is quashed. The matter is remanded back for fresh decision
on the issue. The learned trial Court shall follow the case of
Minukumari (supra) and decide the matter afresh on its own merits
in accordance with law.
R/SCR.A/21/2021 ORDER DATED: 07/10/2021
Order in Criminal Misc. Application :
In view of the order passed in main matter i.e. Special Criminal
Application No. 21 of 2021, no order in present Criminal Misc.
Application.
(ILESH J. VORA,J)
P.S. JOSHI
