Dalpatbhai Dhirubhai Katariya vs State Of Gujarat
2023 Latest Caselaw 8133 Guj

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

    R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 8608 of 2023


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE J. C. DOSHI

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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 ?

========================================================== DALPATBHAI DHIRUBHAI KATARIYA Versus STATE OF GUJARAT ========================================================== Appearance:

MR NIMIT Y SHUKLA(8338) for the Applicant(s) No. 1

MR KM ANTANI, Addl. PUBLIC PROSECUTOR for the Respondent(s) No.

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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

Date : 08/11/2023

CAV JUDGMENT

Rule. Learned APP waives service of notice of rule for the respondent State.

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1. By way of present petition, the petitioner seeks for quashment of the order below Exh. 31 dated 19.04.2023 passed by the Ld. Sessions Judge, Bhavnagar in Sessions Case No. 145 of 2022 with Sessions Case No. 153 of 2022 with Sessions Case No. 9 of 2023 and to further direct further investigation in connection with Sessions Case No. 145 of 2022 with Sessions Case No. 153 of 2022 with Sessions Case No. 9 of 2023 to be carried out by superior officer not below the rank of Superintendent of Police pending before the Ld. Principal District Judge, Bhavnagar.

2. The petitioner is the original complainant and for the sake of brevity, the petitioner is referred to as a complainant in this order.

3. Brief facts of the case are as under:-

3.1 The complainant received whatsapp message from unknown number, to which the complainant replied. Pursuant to the reply, a photograph of a girl was sent with the identification that she is from Ahmedabad and that her husband is harassing her too much and for different reasons, she has been met with the cruelty. Through whatsapp message, she desired to meet the complainant. When the complainant was in Surat, an unknown lady desired to meet him and therefore, the complainant booked a hotel for the meeting and the complainant went to meet that person in hotel wherein the person informed that one Manisha Goswami who is the accused in case of murder of Jayanti Bhanushali, is her friend and she informed the

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complainant that with respect to procuring bail of Manisha Goswami the person needed help of the complainant. It is further told to the complainant that since she has been harassed by her husband, she needed divorce from her husband and therefore she needs Rs. 50,000/- from the complainant to which the complainant acceded to her request. Thereafter, the person gave the complainant one cold drink which was intoxicated and the complainant having drunk said cold drink, fell unwell and does not remember as to what happened thereafter.

3.2 Subsequent to the above incident, when the complainant was in Bhavnagar, said person requested the complainant to give her Rs. 2,00,000/- and on that day, the complainant received a whatsapp call from one Mahavirsinh informing the complainant that he has a video of complainant along with that lady in half nude position and if the complainant wanted to solve the situation, he may come and meet. It is further demanded that if the complainant wanted to get the video deleted, he has to give ransom money of Rs.2 crore, otherwise, the complainant would be defamed everywhere and would also be subjected to a false rape case. Some talks in regards to fetching the ransom money was also took place and ultimately, on 24.8.2022, the complainant lodged an FIR bearing C.R. No. 11198015221165 of 2022 registered with Bortalav Police Station, Bhavnagar registered for the offences punishable u/s 387, 328, 506 (1) and 120B of Indian Penal Code and 66 (E) of Information Technology Act.

3.3 Usual investigation took place. Charge sheet came to be

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filed against the accused persons. Same way, two other charge sheets came to be filed against remaining accused persons. Since the offence alleged against the accused were exclusively triable by the Court of Sessions, after being committed, all three charge sheets were registered as Sessions Case Nos.145/2022, 153/2022 and 9 of 2023. All are ordered to be tried together. In the above sessions cases, an application Exh.31 was moved by the complainant u/s 173(8) of the Code of Criminal Procedure, 1973 for further investigation of the offence. By impugned order dated 19.4.2023, the learned Session Judge, Bhavnagar rejected application Exh.31.

4. Being aggrieved by the aforesaid order, the petitioner has preferred present petition seeking above stated relief.

5. Learned advocate Mr. Nimit Shukla appears for the petitioner and learned APP Mr. KM Antani appears for the respondent State.

6. Though served, none remained present for the respondent No.2.

7. Learned advocate Mr. Nimit Shukla for the petitioner referring to reason Nos.3 to 12 stated in the application Exh.31, would submit that the investigating officer has made unfair and baised investigation. He would further submit that the police has not carried out panchnama of the Hotel Citadel, whereupon the complainant met with the accused Kajal. He would further submit that in the interest of justice, it is necessary to draw

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panchnama where the complainant met with the accused Kajal first time. Simultaneously, the police has also not carried out panchnama of the office of the complainant, whereupon first time, accused Samatbhai and Rajubhai came to meet the complainant. It is also alleged that CCTV footage of the Citadel Hotel is not collected as evidence. It is further submitted that the abstract of the Register of the Citadel Hotel, where the complainant and accused Kajal have signed, is not obtained nor sent for analysis of the hand-writing expert. It is also alleged that though CDR of mobile numbers are obtained, no CIF form is collected as to prove CDR which are possessed by the accused and which are forming part of the talks between the complainant and the accused. In such a way, it is submitted that the police has made a stall and incomplete investigation.

8. Learned advocate Mr. Shukla would further submit that to meet with the principle of fair trial, the police is required to collect all such evidence and has to make out proper investigation when allegation of serious offences of extortion and honey trap has been alleged against the accused. But, police has carried out one sided investigation which downplay the rigours of the incident and may help the accused. He would further submit that even some of the persons are not made as an accused though clear case is made against them.

9. Referring to judgment of the Hon'ble Apex Court in case of Anant Thanur Karmuse Vs. State of Maharashtra reported in 2023(1) GLH 553, learned advocate Mr. Shukla would submit that though in the present case, charge is framed and the

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witnesses are examined, the limits which is stated in case of Vinubhai Haribhai Malaviya Vs. State of Gujarat reported in (2019) 17 SCC 1, would not come in way of this Court to pass necessary orders for further investigation. He would further submit that limit which is stated in case of Vinubhai Haribhai Malaviya (supra) would not apply to the constitutional Court in case if the situation demands for further investigation. He would further submit that fair investigation is the fundamental right of the complainant and if the same is not done, it may prejudice the very purpose and the right stated therein.

10. Upon the foregoing arguments, it is submitted that the learned Session Judge has committed serious error in rejecting application Exh.31. Learned advocate Mr. Shukla would further submit that this Court should exercise constitutional powers and in view of various reasons stated in the petition, this Court has to interfere with the impugned order and order for further investigation.

11. At the end of argument, it is submitted to allow this petition.

12. On the other hand, learned APP Mr. Antani canvassed two fold submissions.

13. Firstly referring to the grounds mentioned in application Exh.31 for seeking further investigation of the offence, he would submit that none of the grounds making out case for exercising powers u/s 173(8) of the Code of Criminal Procedure, 1973,

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which allows the learned trial Court to pass an order of further investigation. He would further submit that the order of further investigation cannot be made at the whims and thoughts of the complainant. He would further submit that the petitioner is a de facto complainant. Reading the provisions of section 173(8) of the Code of Criminal Procedure, 1973, he would submit that power is lying with the investigating officer or the Court conducting the matter to order for further investigation to do the justice, but in the present case, the complainant wants to carry out the investigation in a particular way, which is not permitted and rightly has been denied by the learned trial Court. He would further submit that before seeking relief of further investigation, the de facto complainant must establish grounds that the investigation has seriously prejudiced his right to take justice. He would further submit that marking out certain points or circumstances as thought by the complainant would not allow him to seek relief for further investigation.

14. Secondly, learned APP would submit that in the present case, charge is already framed and the trial is progressed. The petitioner complainant has approached this Court at the stage of leading evidence in sessions case and as such, the equity is not foreseeable in the present case. He would further submit that delay and laches should be considered in the present case to deny the relief. He has also referred to and relied upon the case of State of Maharashtra Vs. Digambar reported in (1995) 4 SCC 683 to contend that delay and laches proves pivotal effect in denying the relief to the writ petitioner. He would further submit that in the present case, more than 30 witnesses are examined

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and the trial is at a substantial stage. So allowing further proceedings at this stage would seriously prejudice the right of the accused and would be antithetical to the principle of fair trial. The submission was canvassed to dismiss the petition.

15. Heard learned advocates appearing for both the sides and also perused the authorities cited at bar .

16. At the outset, following undisputed facts are emerging from the record.

 By way of this petition, the petitioner complainant prayed to quash and set aside the order passed below Exh.31. As such, essentially, the petitioner is asking for allowing application Exh.31 filed before the learned Session Court.  The trial is substantially progressed and more than 30 witnesses are examined.

 The petitioner has not invoked jurisdiction of this Court seeking further investigation, but has invoked jurisdiction of this Court under Article 227 of the Constitution of India to issue writ of mandamus to quash and set aside the impugned order passed below Exh.31 denying further investigation.

17. Section 173(8) of the Code of Criminal Procedure, 1973 reads as under:-

"(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate

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and, where 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; and the provisions of sub- sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub- section (2)."

18. It is undoubted that the constitutional Court can direct further investigation even by some other investigating agency. The fair investigation is a pivotal to fair trial. It is undoubted that the power to order fresh/ de novo or re-investigation are being vested with the constitutional Court. The proceeding of the trial or examination of some witnesses cannot be an absolute impediment and fatuous the constitutional power from exercising it ensuring for the fair and just investigation.

19. At this juncture, I may refer to the observations and findings of the Hon'ble Apex Court in case of Anant Thanur Karmuse (supra) in para 8.1 and 8.2, which reads as under:-

"8.1 In the case of Bharati Tamang (supra), after taking into consideration the decisions of this Court in the case of Babubhai Vs. State of Gujarat, (2010) 12 SCC 254 (paras 40 and 42) and the subsequent decision of this Court in the case of Ram Jethmalani Vs. Union of India (2011) 8 SCC 1 and other decision on the point, ultimately the principles, which are culled out are as under:-

"41. From the various decisions relied upon by the petitioner counsel as well as by respondents' counsel, the following principles can be culled out. 41.1. The test of admissibility of evidence lies in its relevancy.

41.2. Unless there is an express or implied constitutional prohibition or other law, evidence placed

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as a result of even an illegal search or seizure is not liable to be shut out.

41.3. If deficiency in investigation or prosecution is visible or can be perceived by lifting the veil which try to hide the realities or covering the obvious deficiency, Courts have to deal with the same with an iron hand appropriately within the framework of law. 41.4. It is as much the duty of the prosecutor as of the Court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice.

41.5. In order to ensure that the criminal prosecution is carried on without any deficiency, in appropriate cases this Court can even constitute Special Investigation Team and also give appropriate directions to the Central and State Governments and other authorities to give all required assistance to such specially constituted investigating team in order to book the real culprits and for effective conduct of the prosecution. 41.6. While entrusting the criminal prosecution with other instrumentalities of State or by constituting a Special Investigation Team, the High Court or this Court can also monitor such investigation in order to ensure proper conduct of the prosecution. 41.7. In appropriate cases even if the charge-sheet is filed it is open for this Court or even for the High Court to direct investigation of the case to be handed over to CBI or to any other independent agency in order to do complete justice.

41.8. In exceptional circumstances the Court in order to prevent miscarriage of criminal justice and if considers necessary may direct for investigation de novo."

8.2 In the case of Dharam Pal (supra), after taking into consideration the catena of decisions on the point, it is observed and held that the constitutional courts can direct for further investigation or investigation by some other investigating agency. It is observed that the purpose is, there has to be a fair investigation and a fair trial. It is observed that the fair trial may be quite difficult unless there is a fair investigation. It is further observed and held that the power to order fresh, de novo or re- investigation

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being vested with the constitutional courts, the commencement of a trial and examination of some witnesses cannot be an absolute impediment for exercising the said constitutional power which is meant to ensure a fair and just investigation. While observing and holding so, in paragraphs 24 and 25, it is observed and held s under:-

"24. Be it noted here that the constitutional courts can direct for further investigation or investigation by some other investigating agency. The purpose is, there has to be a fair investigation and a fair trial. The fair trial may be quite difficult unless there is a fair investigation. We are absolutely conscious that direction for further investigation by another agency has to be very sparingly issued but the facts depicted in this case compel us to exercise the said power. We are disposed to think that purpose of justice commands that the cause of the victim, the husband of the deceased, deserves to be answered so that miscarriage of justice is avoided. Therefore, in this case the stage of the case cannot be the governing factor.

25. We may further elucidate. The power to order fresh, de novo or reinvestigation being vested with the constitutional courts, the commencement of a trial and examination of some witnesses cannot be an absolute impediment for exercising the said constitutional power which is meant to ensure a fair and just investigation.

It can never be forgotten that as the great ocean has only one test, the test of salt, so does justice has one flavour, the flavour of answering to the distress of the people without any discrimination. We may hasten to add that the democratic set-up has the potentiality of ruination if a citizen feels, the truth uttered by a poor man is seldom listened to. Not for nothing it has been said that sun rises and sun sets, light and darkness, winter and spring come and go, even the course of time is playful but truth remains and sparkles when justice is done. It is the bounden duty of a court of law to uphold the truth and truth means absence of deceit, absence of fraud and in a criminal investigation a real and fair investigation, not an investigation that reveals itself as a sham one. It is not acceptable. It has to be kept uppermost in mind that impartial and truthful investigation is imperative. If there is indentation or concavity in the investigation, can the "faith" in investigation be regarded as the gospel truth? Will it

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have the sanctity or the purity of a genuine investigation? If a grave suspicion arises with regard to the investigation, should a constitutional court close its hands and accept the proposition that as the trial has commenced, the matter is beyond it? That is the "tour de force" of the prosecution and if we allow ourselves to say so it has become "idée fixe" but in our view the imperium of the constitutional courts cannot be stifled or smothered by bon mot or polemic. Of course, the suspicion must have some sort of base and foundation and not a figment of one's wild imagination. One may think an impartial investigation would be a nostrum but not doing so would be like playing possum. As has been stated earlier, facts are self-evident and the grieved protagonist, a person belonging to the lower strata. He should not harbour the feeling that he is an "orphan under law".

20. Bearing in mind the above principle culled out from the binding precedent, if we look back to the facts of the case, at the cost of repetition, it can be said that by way of this petition, the petitioner has not invoked the constitutional power of this Court for re-investigation or de novo investigation or fresh investigation. What has been asked is to upturn the order passed below Exh.31, whereby, the learned Session Judge has declined relief of further investigation. Clear distinction can be marked in both the preposition.

21. In case of Vinubhai Haribhai Malaviya (supra), whereby it is unequivocally stated about the powers of Magistrate exercising for further investigation. The Hon'ble Apex Court limits the power to be exercised till commencement of trial. The relevant observation made in para 42 reads as under:-

"42. There is no good reason given by the Court in these decisions as to why a Magistrate's powers to order further investigation would suddenly cease upon process being

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issued, and an accused appearing before the Magistrate, while concomitantly, the power of the police to further investigate the offence continues right till the stage the trial commences. Such a view would not accord with the earlier judgments of this Court, in particular, Sakiri [Sakiri Vasu v. State of U.P., (2008) 2 SCC 409], Samaj Parivartan Samudaya [Samaj Parivartan Samudaya v. State of Karnataka, (2012) 7 SCC 407], Vinay Tyagi [Vinay Tyagi v.

Irshad Ali, (2013) 5 SCC 762], and Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92]; Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92] having clearly held that a criminal trial does not begin after cognizance is taken, but only after charges are framed. What is not given any importance at all in the recent judgments of this Court is Article 21 of the Constitution and the fact that the Article demands no less than a fair and just investigation. To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate's nod under Section 173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases midway through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156(3) read with Section 156(1), Section 2(h) and Section 173(8) CrPC, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding, as was held in Hasanbhai Valibhai Qureshi [Hasanbhai Valibhai Qureshi v. State of Gujarat, (2004) 5 SCC 347]. Therefore, to the extent that the judgments in Amrutbhai Shambhubhai Patel

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[Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel, (2017) 4 SCC 177], Athul Rao [Athul Rao v. State of Karnataka, (2018) 14 SCC 298] and Bikash Ranjan Rout [Bikash Ranjan Rout v. State (NCT of Delhi), (2019) 5 SCC 542] have held to the contrary, they stand overruled. Needless to add, Randhir Singh Rana v. State (Delhi Admn.) [(1997) 1 SCC 361] and Reeta Nag v. State of W.B. [(2009) 9 SCC 129] also stand overruled."

22. Coming back to the case on hand, though the petitioner has pointed out certain exigencies for seeking further investigation, but none of them can be considered as a lapse or deficiency in the investigation, which equates with non- observation of fair investigation. Referring grounds mentioned in Exh.31, they are no more than thoughts of the complainant. They cannot consider emotion for further investigation on to term the investigation unfair. Merely, the petitioner complainant wishes to carry out investigation in a particular way would not be a reason for order for further investigation of the offence. There is no circumstance pointed out by the petitioner complainant which warranting further investigation of the offence. Some of thoughts in mind of the complainant if not carried out by investigating officer in investigation of the offence, it cannot be basis of order for further investigation. The complainant seeking further investigation is needed to show and display serious lapses, which are glaring and have prejudicial affect upon fair trial. Further to be noted that one of the accused Mr. Vijay Parmar is under trial prisoner and it is specifically observed by the learned trial Court in the impugned order that he is in judicial custody since long and the matter is at the stage of recording of the evidence. This reason is also weighed with the learned trial Court for denying the application.

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The fact of case of Vinubhai Haribhai Malaviya (supra) has been applied to its proper perspective by the learned trial Court along with judgment of Athul Rao Vs. State of Karnataka reported in (2018) 14 SCC 298.

23. Under the supervisory jurisdiction under Article 227 of the Constitution of India, this Court do not find any reason to interfere with the impugned order.

24. Resultantly, present petition fails and stands dismissed. Rule discharged.

(J. C. DOSHI,J) SHEKHAR P. BARVE