Gujarat High Court

Patel Sunil Jayantilal vs Vijay Govindlal Modi on 15 April, 2025

                                                                                                              NEUTRAL CITATION




                             R/SCR.A/6196/2015                                 ORDER DATED: 15/04/2025

                                                                                                              undefined




                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                            R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 6196 of 2015

                       ==========================================================
                                                     PATEL SUNIL JAYANTILAL
                                                             Versus
                                                  VIJAY GOVINDLAL MODI & ANR.
                       ==========================================================
                       Appearance:
                       MR HIMANSHU C DESAI(6832) for the Applicant(s) No. 1
                       NOTICE SERVED BY DS for the Respondent(s) No. 1
                       MR UTKARSH SHAMA, ADDL. PUBLIC PROSECUTOR for the
                       Respondent(s) No. 2
                       ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                                           Date : 15/04/2025

                                                            ORAL ORDER

1. By way of this application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), the petitioner has prayed to quash and set aside order dated 15.10.2015 passed by the learned District and Sessions Judge, Gandhinagar in Criminal Revision Application No.46 of 2015.

2. Heard learned advocates appearing for the respective parties.

3. Though served, none remained present for the respondent No.1.

4. In a criminal case, the de facto complainant preferred an application Exh.13 for seeking further investigation of the offence at the stage where 8 witnesses are already examined.

NEUTRAL CITATION

R/SCR.A/6196/2015 ORDER DATED: 15/04/2025

undefined

Learned CJM, Gandhinagar vide order dated 7.5.2015 dismissed the application by giving cogent reasons relying upon various judgments by believing that right to seek further investigation is lying with the investigating officer if he found some new and cogent evidence. The de facto complainant has no right to prefer application u/s 173(8) of the Code in the midst of trial.

4.1 Having been aggrieved by said judgment and order, the de facto complainant preferred Criminal Revision Application No.46 of 2015 before the learned Sessions Court, Gandhinagar, who was pleased to allow the Criminal Revision Application without examining the stage of the trial and went on to discuss the power of magistrate to direct further investigation after taking assistance from the judgment of the Hon'ble Apex Court in case of Chandra Babu @ Moses Vs. State through Inspector of Police reported in 2015 (AIJEL) Sc 56718 and has also taken the assistance from other judgment and held that the learned Magistrate has power to direct further investigation and this significant power may be exercised sparingly, but in exceptional cases, it can be exercised to achieve the end of justice. The learned Sessions Court upon such finding, allowed the revision and directed to make further investigation as pointed out in para B,C and D of the application.

4.2 Having aggrieved by the aforesaid order, the accused is before thi Court inter alia on the ground mentioned in the petition.

5. The issue raised in the petition is squarely covered by the judgment of this Hon'ble Court in case of Dalpatbhai Dhirubhai

NEUTRAL CITATION

R/SCR.A/6196/2015 ORDER DATED: 15/04/2025

undefined

Katariya Vs. State of Gujarat rendered in Special Criminal Application No.8608 of 2023. This Court referring to section 173(8) of the Code, in para 18 to 21 reads as under:-

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

NEUTRAL CITATION

R/SCR.A/6196/2015 ORDER DATED: 15/04/2025

undefined

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

NEUTRAL CITATION

R/SCR.A/6196/2015 ORDER DATED: 15/04/2025

undefined

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 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

NEUTRAL CITATION

R/SCR.A/6196/2015 ORDER DATED: 15/04/2025

undefined

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 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 ide 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.

NEUTRAL CITATION

R/SCR.A/6196/2015 ORDER DATED: 15/04/2025

undefined

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 Honble 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 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

NEUTRAL CITATION

R/SCR.A/6196/2015 ORDER DATED: 15/04/2025

undefined

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 [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.

NEUTRAL CITATION

R/SCR.A/6196/2015 ORDER DATED: 15/04/2025

undefined

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. "

6. Thus, it is crystal clear that power to order further inquiry can be exercised till commencement of trial. However, the learned Sessions Court missed to read the stage of the trial where 8 witnesses are already examined. Meaning thereby, the learned Sessions Court has passed the order for further investigation where the trial is substantially progressed and almost on the verge of completion. Therefore, the order passed by the learned Session Judge suffers from patent illegality and deserves to be quashed and set aside.

7. In the result, the petition is allowed and impugned order dated 15.10.2015 passed by the learned District and Sessions Judge, Gandhinagar in Criminal Revision Application No.46 of 2015 is hereby quashed and set aside.