Gujarat High Court

Girishbhai Revashankar Joshi vs State Of Gujarat on 8 June, 2023

Bench: Gita Gopi

     R/SCR.A/555/2013                             JUDGMENT DATED: 08/06/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CRIMINAL APPLICATION NO. 555 of 2013


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE GITA GOPI                                      Sd/-

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1     Whether Reporters of Local Papers may be allowed                 NO
      to see the judgment ?

2     To be referred to the Reporter or not ?                          NO

3     Whether their Lordships wish to see the fair copy                NO
      of the judgment ?

4     Whether this case involves a substantial question                NO
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                 GIRISHBHAI REVASHANKAR JOSHI & 1 other(s)
                                 Versus
                       STATE OF GUJARAT & 1 other(s)
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Appearance:
MR ZUBIN F BHARDA(159) for the Applicant(s) No. 1,2
MR YOGESH LAKHANI, SR. ADVOCATE WITH MR HR PRAJAPATI(674) for
the Respondent(s) No. 2
MS JIRGA JHAVERI, APP for the Respondent(s) No. 1
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                              Date : 08/06/2023

                             ORAL JUDGMENT

1. The petitioner No.1 is resident of Ahmedabad and petitioner

No.2 being NRI, residing at London and he is the victim of a larger

conspiracy, seek direction for further investigation under Section

R/SCR.A/555/2013 JUDGMENT DATED: 08/06/2023

173(8) of the Cr.P.C in connection with an offence being

C.R.No.454/2006 registered with Ellisbridge Police Station,

Ahmedabad on 15.06.2006 for the offence under Sections 302, 147,

148, 149, 120 (b) and 34 of the Indian Penal Code, 1860 and Section

135 of the Bombay Police Act, wherein it is alleged that NRI Mr.

Pankajbhai Trivedi was brutally murdered near Ellis-bridge

Gymkhana, and the matter was committed to the Court of Sessions

and Sessions Case No.185/2009 has been registered before the City

Sessions Court, Ahmedabad.

2. The petitioner No.2 as a part of larger conspiracy was brutally

attacked and severely injured while on his visit to India in almost

identical offence and by the same group of persons as the present

offence and for that, separate FIR being C.R.No.I-10/2003 dated

12.01.2003 was registered at Jamnagar City 'A' Division Police

Station, Jamnagar, for the offence under Sections 147, 148, 149,

323, 324, 325, 326 and 120 (b) of the Indian Penal Code, 1860.

3. As per the record, crime came to be investigated in

connection with the offence being C.R.No.454/2006 and

chargesheet was filed on 06.09.2006 against 10 accused persons.

As per the case of the prosecution, deceased Pankajbhai Trivedi was

disoriented with the functioning of swadhyay parivar under one

Dhanshri @ Jayshree Didi and had raised voice against financial

irregularities and such activities of deceased led to animosity in the

R/SCR.A/555/2013 JUDGMENT DATED: 08/06/2023

minds of accused and therefore, the accused persons conspired and

ultimately the offence was committed.

4. The petitioner No.1 has been cited as a witness in the

chargesheet, whereas, petitioner No.2 who returned to London after

the attack on him in 2003 came to know from the newspaper report

regarding development of his case, where the inquiry revealed that

the investigation had come to an end abruptly without there being

investigation to find out the the real culprits. It is alleged by

petitioner No.2 that investigating officer submitted a report for

further investigation on the ground that Jamnagar offence has a

nexus to the offence registered as Ellisbridge Police Station,

Ahmedabad and he himself had addressed several communications

to the police authorities from U.K and also to the concerned Hon'ble

Chief Minister pointing out that attack made on him and on

deceased was on the similar way because of raising their voice

against the financial and other irregularities of swadhyay parivar

under Jayshree didi and they were found to be an eyesore for the

organization and hence, under common target of the bigwigs of the

swadhyay parivar including Jayshree didi, they were attacked.

5. The Petitioners stated that investigation was not on a right

direction and had overlooked certain evidence, which could have

helped the investigation to reach to the truth about the murder of

R/SCR.A/555/2013 JUDGMENT DATED: 08/06/2023

Pankajbhai Trivedi and the petitioner No.1 had filed an application

Exh:46 on 10.12.2012 before the City Sessions Court, Ahmedabad

and on the same day, petitioner No.2 also filed a pursis Exh:47

through his advocate to adopt the averments of application Exh:46,

which came to be rejected and thus, aggrieved by the same, they

have moved present Court under Articles 226 and 227 of the

Constitution of India read with Section 482 of the Cr.P.C on the

ground that the impugned order is unjust, arbitrary and against the

evidence on record.

6. It is in this regard to the contentions raised in application

Exh:46, it is submitted that, the learned Judge ought to have taken

into consideration the letters written by the deceased to the various

authorities about the impending threats to his life and also the

names implicated in such letters. The petitioners state that those

letters were found from the car of the deceased during the course of

investigation, but the investigation was not carried out on a way of

the contents of such letters and no statement of the persons named

in those letters were recorded, nor they were called for

interrogation. The petitioners state that letters directly indicate the

name of Jayshree didi as responsible person, who carried out attack

on the deceased and the inaction on the part of the investigating

officer to investigate this angle has resulted into investigation going

in wrong direction and therefore, the petitioners contended that

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there is no fair and independent investigation. It is also contended

by the petitioners that the learned Judge ought to have taken into

consideration the statement of the witnesses (i) Himanshu Trivedi

(ii) Ashok Sani (iii) Mahendra Chudasama (iv) Shrutiben Trivedi (v)

Manish Khunt, who according to the petitioners implicate (i)

Hayshree didi (ii) Manish Savani (iii) Rajesh Parikh (iv) Ramnik Patel

and (v) Bharat Bhatt in the offence. In spite of that, investigation

has not proceeded at all in a right direction and the petitioners

alleged that Jayshree didi is not even interrogated.

7. The petitioners further alleged that the call details are not

analyzed in proper manner and on the basis of the call details of the

accused persons, proper investigation would have resulted in

pinning down the real accused involved in the offence, but distorted

version of call detail analysis has resulted in misdirecting the

investigation.

8. Learned advocate Mr. Zubin Bharda for the petitioners has

relied on the judgment of Popular Muthiah Vs. State

represented by Inspector of Police, reported in (2006) 7 SCC 296,

to state that while exercising the appellate jurisdiction, the High

Court in suo motu exercise of its inherent power can direct further

investigation of the case against the persons, who were not

chargesheeted and were not accused at the stage of trial, when the

High Court comes to the conclusion that they should be included in

R/SCR.A/555/2013 JUDGMENT DATED: 08/06/2023

the chargesheet. Mr. Bharda thus has urged to exercise inherent

jurisdiction of the Court to order for further investigation so as to

direct towards the inquiry and interrogation of the alleged persons.

9. While countering the arguments, Mr. Yogesh Lakhani, learned

Senior Counsel assisted by Mr. H.R.Prajapati, learned counsel for the

complainant relying on the judgment of the Apex Court rendered in

case of Vinubhai Haribhai Malaviya Vs. State of Gujarat reported in 2019

(17) SCC 1, stated that if no power can be exercised by a Magistrate

of further investigation on post cognizance stage, no such power

should be exercised by this Court since the exercise of inherent

jurisdiction is always be sparingly made has to be satisfied about

the existence of strong prima facie case against such alleged

persons and further contended that the Court ordinarily should not

interfere in the investigation conducted by the authorities while

specifically directing the investigation to be made under a particular

angle or by a particular agency. Senior Counsel Mr. Lakhani further

submits that the Magistrate would have wide powers to direct

further investigation even after a chargesheet is filed by the police

in view of the jurisdiction entrusted to the Magistrate under Section

156(3) of Cr.P.C and further submitted that power to order further

investigation under Section 173 (8) of Cr.P.C could be equated with

that power as the Magistrate holds under Section 156 (3) and under

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Sections 190 of Cr.P.C and such power would continue until the

charges are framed by the Court, but once the trial has begun,

further investigation should not be ordered by the Magistrate who

would exercise the discretion only on the facts of the case.

10. It has been stated that more than 17 witnesses have been

examined and as per the chargesheet, 14 witnesses remained to be

examined by the trial Court and prior to filing of present petition,

the petitioners had moved City Civil Court by application Exh:46 on

10.12.2012, which stood rejected on 08.02.2013. The Sessions

Judge Ahmedabad had taken into consideration the submissions

made by the petitioners and has made a detailed observations,

which are as under:-

"10. The learned advocate Mr Gajjar has argued that in the statement of Himanshu Pankaj Trivedi, the son of the deceased and witness Shrutiben Trivedi the wife of the deceased Pankaj Trivedi and other witnesses like Ashok Shani, Mahendra Chudasama and Mansukh Khut clearly alleged the name of Jayshree Talvalker @ Didi, Manish Savani, Rajesh Parikh, Ramnik Pavel, and Bharat Bhatt, but the charge-sheet is filed only against Bharat Bhatt and there is no explanation why the other persons are not booked in the offence.

10.1 If we peruse the statement of the Himanshu Pankaj Trivedi and Shrutiben Pankaj Trivedi, it seems that they have not clearly expressed the name of the reputed persons of the Swadhyay Pariwar are involved in the matter, but they believed that the names are mentioned in the letters of the deceased Pankaj Trivedi may be involved in the offence. In this matter the investigation

R/SCR.A/555/2013 JUDGMENT DATED: 08/06/2023

carried out and after investigation the investigating officer has found that 10 persons have made conspiracy for committing the offence of the murder and therefore, they have been booked.

10.2 Mere names are mentioned in the letters and they are not booked as the accused cannot be said that the investigation is not carried out in its real spirit. From the records it seems that the statement of Jayshree Talvalker @ Didi of Swadhyay Pariwar is not recorded by the investigating officer. Of course in the matter when apprehension has been expressed by the deceased as to his unnatural death and for that the names are shown in his letters and one of the names shown in the letters is of Jayshree Talvalker @ Didi, it was the duty of the investigating officer to interrogate the said person, but mere the statement is not recorded of the said person cannot be said that the investigating officer is protecting the said person and investigation is not carried out in its real spirit. The investigating officer has recorded the Statement of so many persons and after investigation, the investigating officer has found 10 persons responsible for committing the offence and so charge-sheet is filed.

11. The learned advocate Mr Gajjar has argued that the police has not used scientific method for interrogation of the accused. The investigating officer has not sent accused for Narcoanalysis test and polygraphic test.

11.1 If we peruse the police papers, it is crystal clear that the investigating officer had given application before the competent Court for obtaining permission for Narcoanalysis test of some of the accused which was rejected by the Court and so the accused could not be sent for Narcoanalysis test and polygraphic test. In such circumstances, the allegation against the investigating officer as he has not investigated the case with the help of the scientific method cannot be accepted.

12. The learned advocate Mr V. D. Gaijjar for the applicant has

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vehemently argued that from the police papers, it seems that the investigating officer is interested and he has not carried out the investigation in its proper Spirit. He has also argued that the documents which are taken as Mudammal clearly reflect the name of the reputed persons of the Swadhyay Fariwar for the murder of the deceased Pankaj Trivedi, even though reputed persons were not summoned for interrogation.

12.1 From the records, it seems that the documents which are recovered from the Car of the deceased Pankaj Trivedi by the investigating officer, the investigating officer has relied upon the said documents which are found relevant and necessary in the investigation.

12.2 If we peruse the said documents it seems that the deceased Pankaj Trivedi has written letters to the various authorities wherein he has mentioned the name of the reputed persons of the Swadhyay Pariwar to whom considered responsible for his death, in case of his unnatural death.

12.3 The documents which are recovered from the Car of the deceased Pankaj Trivedi is the part of the record of his case. The question whether the names are mentioned in the letters should be made as an accused in the matter can be decided during the trial by the Court, if any evidence is brought on the record against the person and for that reason there is no need to send the matter for further investigation. The court can join the person as an accused against whom the evidence is brought on record under Section 319 of Criminal procedure Code."

10. The learned Sessions Judge observing the abovementioned

facts had concluded in para 24.1 and 25 as under:-

24.1 In this matter, on 10/12/2012, the charge has been framed against the present accused for the offence under Sections 120(B),

R/SCR.A/555/2013 JUDGMENT DATED: 08/06/2023

143, 147, 148, 302 read with Section 149 of the IPC and 135(1) of the B. P Act and matter is pending for recording the evidence. In such circumstances, the direction cannot be given for further investigation.

25. It is well settled principle that in the Session case, the public prosecutor is in the charge of the case and no other person has right of audience before the Court. It is also settled that even in the application filed by the accused for bail or anticipatory bail the complainant can appear through an advocate but the complainant or his advocate has no right of audience before the Court and they should put their case through public prosecutor who is in charge of the case. In such circumstances, the witness or third person has no right to give such application for further investigation. If they want to give such application it should be submitted through the public prosecutor and if the public prosecutor is not inclined to submit the same they should approach the Hon'ble High Court or the Hon'ble Supreme Court, the involving the writ jurisdiction of the Court. In view of the above settle position of the law, the Session Court cannot entertain the application given by the witness.

26. As discussed above the Session Court on the basis of the application of the witness cannot direct the investigating officer for further investigation of the offence after framing of the accused. Moreover, the witness has no right of audience before the Sessions Court and he should file application through the public Prosecutor in charge of the case. Moreover, the investigation carried out by the investigating officer with the help of the team, in such circumstances, there is no need to give the direction for further investigation of the officer. Hence, the application deserves to be rejected."

11. The application for further investigation was rejected after a

detailed consideration on the grounds raised by the petitioners.

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12. In this case, the trial is now at the fag-end of conclusion. The

petitioners could not raise any other grounds for this Court to

exercise an inherent jurisdiction.

13. In the judgment of Popular Muthiah (supra), the Hon'ble

Apex Court in para 56 has observed thus:-

"56. So far as inherent power of the High Court is concerned, indisputably the same is required to be exercised sparingly. The High Court may or may not in a given situation, particularly having regard to lapse of time, exercise its discretionary jurisdiction. For the said purpose, it was not only required to apply its mind to the materials on records but was also required to consider as to whether any purpose would be served thereby."

14. Here in this case too, the grievance has been raised before

the City Civil Court by moving application at Exh:46 and by order

dated 08.02.2013, prayer for further investigation was rejected and

aggrieved by the same, the petitioners have moved this Court in the

year 2013. The trial has progressed. Witnesses have been

examined. It has now been a long time. This Court does not find any

reason to consider the prayer, since the chargesheet has been filed

against nine persons and the trial Court has recorded the evidence

of 17 witnesses.

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15. For the foregoing reasons, this Court does not find any reason

for exercising inherent jurisdiction for further investigation, hence,