Gujarat High Court
Amitkumar Surendrabhai Chaudhary vs State Of Gujarat on 11 July, 2025
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Reserved On : 23.06.2025
Pronounced On : 11/07/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 860 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE L. S. PIRZADA
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Approved for Reporting Yes No
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AMITKUMAR SURENDRABHAI CHAUDHARY
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR IH SYED SR.ADV. WITH MR. AMAAN SYED(14385) for the Applicant(s)
No. 1
MS JYOTI BHATT APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE L. S. PIRZADA
CAV JUDGMENT
Date : 11/07/2025
1. Rule. Learned A.P.P. Ms.Jyoti Bhatt waives service of
Rule for the respondent - State.
2. With the consent of the learned advocates appearing
for the respective parties, the present revision application
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is taken up for final disposal.
3. The present revision application, preferred by the
present applicant under Section 438 read with Section
442 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (for
short, the "BNSS"), is directed against the order dated
09.05.2025 passed by the learned Additional Sessions
Judge, Mehsana in Criminal Revision Application No.74 of
2024, quashing and setting aside the order passed by the
learned Chief Judicial Magistrate, Mehsana and rejecting
Summary Report No.1 of 2023.
4. Brief facts leading to the failing of the present
application are that one F.I.R. bearing
No.11206045220586 of 2022 was registered before
Mehsana City B Division police station on 04.09.2022 for
the offence punishable under Sections 406, 420, 465, 467,
468, 471, and 120(B) of the Indian Penal Code and
Section 135 of the Gujarat Police Act against total 45
accused persons. The said F.I.R. came to be filed by one
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Mr.B.H. Rathod, P.I., S.O.G., District: Mehsana.
4.1. The case of the prosecution, in the nutshell, is that
accused - Neel Patel, Dhruv Patel, Urvesh Shaileshbhai
Patel and Savant Rajendrabhai Patel were found to be
illegally entered into the United States of America by
crossing the border of Canada to America through Saint
Raizes River by boat on 28.04.2022 but, due to heavy
winter and cool atmosphere, the boat was likely to be
drawn and at that point of time, the residential police of
America rescued these four accused persons and
produced them before the learned District Court of
Northern United State, District: New York for appropriate
proceedings against them for illegally entering into the
border of U.S.A.
4.2. During the proceedings before the Court in U.S.A.,
all these four persons were asked questions in English
language but, they were neither able to understand the
questions nor able to answer any question in English and,
therefore, the questions were asked in Hindi language
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through the Hindi translator and thereby, it was revealed
that these four students had illegally qualified the
International English Language Testing System (for short,
'I.E.L.T.S.') through the other students and during the
conversation with these four students, it was also found
that all these four students had secured 8 bands in
I.E.L.T.S. examination but, they were unable to
understand English and not been able to speak in English
and that raised suspension that how, they were qualified
in the I.E.L.T.S. examination. Thereafter, one news item
was published in the Times of India newspaper on
31.05.2021 and subsequently, the U.S. Consulate General
also sent email on 23.05.2022 to the Commissioner of
Police, Mumbai and email was also sent to the
Superintendent of Police, Mehsana and on the basis of
the same, Inquiry no.16 of 2022 was assigned to Mr.B.H.
Rathod, P.I. SOG, Mehsana and on the primary inquiry, it
was found that all these four students had obtained high
score in I.E.L.T.S. examination and they could not been
able to understand English and after the preliminary
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inquiry, it was found that these four students had
committed irregularity in securing the high score
certificate in I.E.L.T.S. examination for obtaining student
visa of Canada.
4.3. On the basis of the said preliminary investigation
report, the concerned authority has asked Mr.B.H.
Rathod, P.I. SOG, Mehsana to lodge a complaint against
the culprits and thereafter, said Mr.B.H. Rathod, P.I.
SOG, Mehsana has filed F.I.R. against 45 accused persons
for the offence punishable under Sections 406, 420, 465,
467, 468, 471 and 120(B) of the Indian Penal Code vide
C.R.No.I-74 of 2022 before the Mehsana City 'B' Division
police station.
4.4. Further, as per the case of the prosecution, one
Mr.N.S. Ghetia has made an investigation from
05.09.2022 to 02.02.2023. However, on 02.02.2023, P.S.I.
Mr.A.D. Bharot has transferred the investigation to one
Dy.S.P. - Mr.Dinesh Chauhan, who has thereafter,
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investigated the case from 05.02.2023 to 28.04.2023 and
as per his investigation, he found insufficient evidence
against the accused and, therefore, on 28.04.2023,
submitted 'B' summary report in the Court of the learned
Chief Judicial Magistrate, Mehsana and upon submission
of the summary report, the learned Chief Judicial
Magistrate, Mehsana issued notice to the original
complainant i.e. P.I. - Mr.B.H. Rathod and P.I. - N.S.
Ghetia and Mr.B.H. Rathod has filed his objections vide
exh.7 and thereafter, on the basis of the summary report
submitted by Dy.S.P. - Mr.Dinesh Chauhan during the
summary proceedings i.e. Summary Case No.1 of 2023,
the learned Chief Judicial Magistrate allowed the 'B'
summary report submitted by investigating officer -
Dy.S.P. - Mr.Dinesh Chauhan and against that, the State
has preferred the revision application before the Sessions
Court, Mehsana being Criminal Revision Application
No.74 of 2024 and by order dated 09.05.2025, the
learned Additional Sessions Judge, Mehsana has set aside
the order of the learned Chief Judicial Magistrate,
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Mehsana, allowing the 'B' summary report and remitted
the case to the learned Chief Judicial Magistrate,
Mehsana for passing an appropriate order and also
directed the concerned Magistrate to send the case to the
Director General of Police, Gujarat State for appointing
honest and competent police officer to the rank of P.I. or
Dy.S.P. for making further investigation, considering the
objections submitted by original first informant - Mr.B.H.
Rathod vide exh.7. Hence, the said order passed in
Criminal Revision Application No.74 of 2024 is challenged
by way of preferring the present revision application.
5. Learned Senior Counsel Mr.I.H. Syed appearing with
learned advocate Mr.Amaan Syed for the applicant
submitted that the order passed by the learned Sessions
Judge is against the settled principles of law and is
required to be quashed and set aside. It is submitted that
the learned revisional Court has no power, directing the
learned Chief Judicial Magistrate to pass such type of
order and it is beyond the purview and power of the
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revisional Court and, therefore, also the order of the
learned Additional Sessions Judge, Mehsana is required
to be quashed and set aside. It is submitted that the order
of the Sessions Court is passed without application of
mind as the finding recorded by the learned Sessions
Judge that the 'B' summary report was filed without the
sanction or approval of the Commissioner of Police,
Mehsana but, there is no such post of Commissioner of
Police in Mehsana district and only the District
Superintendent of Police, Mehsana is there and,
therefore, the order is illegal, perverse, suffers from
material irregularity.
5.1. It is submitted that as per Section 232 of the Gujarat
Police Manual, there is no provision for obtaining the
sanction from the higher authority and, therefore, the
finding recorded by the Sessions Court is against the
settled principles of law and the impugned order is
required to be quashed and set aside.
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5.2. It is submitted that in the order, the Sessions Court
has mentioned the Bombay Police Manual but, this
manual is not in operation in the Gujarat State and the
impugned order is without application of mind and is
required to be quashed and set aside. It is further
submitted that during the hearing of the 'B' summary
report before the learned Chief Judicial Magistrate, the
report of the D.F.S.L. was called for by the concerned
Magistrate and after considering the same, the order has
been passed by the learned Chief Judicial Magistrate,
allowing the 'B' summary report. Further, it is submitted
that as per the judgment of the Hon'ble Apex Court in the
case of Sakiri Vasu vs. State of Uttar Pradesh and others,
reported in (2008)2 SCC 409, the Magistrate has all the
powers to monitor the police investigation and hence, the
learned Chief Judicial Magistrate, while hearing the
summary report, has called for the report is also just and
proper.
5.3. It is submitted that considering the above, the
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impugned order dated 09.05.2025 passed by the
revisional Court is without application of mind and the
same is required to be quashed and set aside. It is
submitted that the learned Chief Judicial Magistrate also
considered all the objections submitted by first informant
- Mr.B.H. Rathod and has given his detailed findings for
the same and considering the same, the finding recorded
by the revisional Court, while setting aside the order of
the learned Chief Judicial Magistrate, is also against the
settled principles of law and is required to be quashed
and set aside and the present application is required to
be allowed.
6. On the other hand, learned A.P.P. Ms.Jyoti Bhatt for
the respondent - State has vehemently opposed the
present application and submitted that the order passed
by the revisional Court i.e. the learned Additional
Sessions Judge, Mehsana is just and proper and does not
require any interference. It is submitted that as per the
circular issued by the Director General of Police,
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Gandhinagar on 23.12.2012, it is mandatory for the police
officer to submit any report and he has to take permission
from his higher officers.
6.1. Learned A.P.P. Ms.Bhatt relied upon the judgment of
this Court in the case of Jamilaben Hanif Manek vs. Sama
Jusab Jasraya reported in 2012(5) GLR 3712 and
submitted that it is not mandatory for the Magistrate to
accept the summary report and the Court has all the
powers to order for further investigation. It is submitted
that considering the same, the present revision
application, being devoid of merits, is required to be
dismissed.
7. After considering the arguments advanced by the
learned advocates for the respective parties, it is required
to be considered whether the order passed by the learned
Additional Sessions Judge, Mehsana, quashing and
setting aside the order of the learned Chief Judicial
Magistrate of accepting the 'B' summary report is ex-
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facie illegal or required to be set aside or not.
8. The short facts of the case are already been narrated
above. So far as the present application is concerned, the
applicant have been shown in the F.I.R. as accused no.1.
Further, from the record, it transpires that the learned
Additional Sessions Judge, Mehsana, while setting aside
the order of the learned Chief Judicial Magistrate, has
mainly considered two aspects, namely, (i) as per Section
232 of the Gujarat Police Act, investigating officer -
Mr.Chauhan has not obtained any sanction from his
higher officers and (ii) learned Chief Judicial Magistrate,
without considering the objections of the original first
informant, has decided the application as there were
ample evidence found during the investigation.
9. Learned Senior Counsel Mr.I.H. Syed has mainly
contended on two grounds that in the order passed by the
learned Additional Sessions Judge, it is mentioned that
the investigating officer has not obtained any sanction
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from the Commissioner of Police, Mehsana but, there is
no post of Commissioner of Police in the district of
Mehsana. Therefore, if the argument is considered,
definitely, it is an admitted position that there is no post
of Commissioner of Police at Mehsana district but, merely
by mentioning Commissioner of Police, Mehsana instead
of District Superintendent of Police, Mehsana, does not
make the whole judgment illegal, there may be a
typographical mistake. Further, in the order, by
mentioning Bombay Police Act, instead of Gujarat Police
Act, also does not make the whole order illegal.
10. Now, the main moot question is that so far as the
finding recorded by the learned Additional Sessions
Judge, Mehsana is concerned, the finding recorded by the
revisional Court is that Dy.S.P. - Mr.Chauhan, vide order
dated 02.02.2023, was assigned the investigation and
subsequently, within two months, he has completed the
investigation and filed 'B' summary report and the report
mainly states that no evidence has been found to file any
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chargesheet against the accused persons and that, as per
the complaint given by the first informant, the offence has
not been committed within the limits of Mehsana City so,
the Mehsana police has no jurisdiction to investigate and
on this ground, the 'B' summary report has been
submitted. The learned revisional Court has considered
the report and the order of the learned trial Court. It is
also observed in the order that as per the report of the
investigating officer - Dy.S.P. - Mr.Chauhan, as the
offence has been committed in Navsari, therefore,
Mehsana police has no jurisdiction to investigate the case
but, original informant and previous investigating officer
- Mr.Rathod has categorically stated in his objections
before the learned Chief Judicial Magistrate that the
accused has applied for visa in Mehsana and filled up the
form of I.E.L.T.S. examination from Mehsana. Further,
the revisional Court has also observed that Dy.S.P. -
Mr.Chauhan has made investigation of the case from
05.02.2022 to 28.04.2022 so, within two and half months,
he has submitted summary report but, in the summary
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report presented before the learned Chief Judicial
Magistrate, during the investigation, the opinion of the
handwriting expert was obtained on 13.12.2022 and it
was revealed that the answersheet of the four accused
collected during the investigation, do not contain the
handwriting of the four accused persons and also, it was
stated during the investigation that another person has
appeared in the examination of I.E.L.T.S. on behalf of the
four students and it is also submitted the objections to the
effect that, who had appeared for the written and oral
test on behalf of the four accused students and how the
accused students qualified in written as well as oral test
of I.E.L.T.S. But, Dy.S.P. - Mr.Chauhan did not make any
investigation on the said aspect, even the natural
handwriting was also not taken by investigating officer -
Mr.Chauhan. Further, it is required to be considered that
during the hearing of the 'B' summary before the learned
Chief Judicial Magistrate, the report of F.S.L. was not
received and during the hearing of the same, report of
the handwriting expert has been called for by the learned
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Magistrate so, without having a report of the handwriting
expert, 'B' summary has already been tendered and in the
report of the handwriting expert, it was found that the
handwriting does not match with the handwriting of the
four accused persons so, the answer-sheet were not
written by the said four accused persons.
11. Further, from the findings recorded by the learned
revisional Court, it is recorded that as per Section 232 of
the Gujarat Police Act, before submitting the final report,
he has to seek sanction from his higher officer.
12. In this regard, it is profitable to peruse Section 232
of the Gujarat Police Manual, which reads as under:-
"232. Final reports.-- (1) When there is no sufficient
evidence to justify the forward of the accused to a
Magistrate the Police Station Officer or the
investigating officer will release the accused person
on bail, if he is in custody.
(2) The Police Station Officer will then submit a final
report to the Magistrate empowered to take
cognizance of an offence on a Police report through
the Sub-Divisional Police Officer in the following
three classes of cases :
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(a) Those in which it appears from the Police
investigation that no offence has been committed.
(b) Those in which it appears from the Police investigation
that only a non-cognizable offence has been committed.
(c) (i) Those in which there are grounds for believing that
an offence has been committed, but in which, in the
opinion of the officer-in-charge of the Police Station, there
are not sufficient grounds to investigate or there is not
sufficient evidence to justify sending any accused for trial,
or in which the offender is not known or cannot be
arrested and sent for trial.
(ii) In cases referred to the Police by a Magistrate, the
final report will be sent direct to the Magistrate.
(3) The final report should be written up carefully by the
officer-in-charge of the Police Station personally and
should be accompanied by all the case papers numbered
and indexed methodically. If the accused has been
released on bail, the Magistrate should be requested to
cancel the bail bond. He should also be requested to pass
orders regarding the disposal of property attached, unless
any of the articles, e.g., blood stained clothes, are
required for further use in true but undetected cases. A
request should also be made to the Magistrate to classify
the case and to issue an appropriate summary of his
order, viz. :
(i) "A" True, undetected (where there is no clue
whatsoever about the culprits or property or where the
accused is known but there is no evidence to justify his
being sent up to the Magistrate (for trial).
(ii) "B" Maliciously false.
(iii) "C" Neither true nor false, e.g., due to mistake of facts
or being of a civil nature,
(iv) "Non-cognizable" Police investigation reveals
commission of only a non-cognizable offence.
(4) A Sub-Divisional Officer is not bound to forward
a final report to the Magistrate immediately. He may
of his own motion direct further enquiry or he may
for special reasons permit a case to remain pending
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under investigation.
(5) When any further investigation is ordered and
made subsequent to the submission of the final
report the papers should, at each stage upto final
disposal, be sent through the Sub-Divisional Officer.
In urgent cases, however, the Magistrate may return
the papers direct to the investigating officer.
(6) When a final report of an officer-in-charge of a
Police Station is returned to him for further
investigation or other purpose, the date of the
submission of the final report in its last and
complete form should be taken as the date of its
submission to the Magistrate for the purpose of
determining the beginning of the period of 14 days
within which a summary of the Magistrate's final
order should be sent.
(7) It is not competent to a Magistrate to return
investigating officer's report made to him under
Section 173, Criminal Procedure Code, with an
order to make a case against the accused and to
send it up for trial. If the Magistrate considers that
there is a prima facie case against the accused he
should take action under Section 204 of the Code. A
reference should also be made to instructions
contained in sub- rules (2) & (3) of rule 230."
13. Therefore, as per said Section, the final report to the
Magistrate must be submitted through the sub-divisional
police officer in three class of cases i.e. (i) first category
of cases where, as per the police investigation, no offence
has been committed (ii) or from the investigation, it
appears that only a non-cognizable offence has been
committed and (iii) or if there is a ground for believing
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that the offence has been committed but, no sufficient
grounds to investigate or no sufficient evidence to justify
sending any accused for the trial.
14. So far as the present case is concerned, as relied
upon by learned A.P.P. Ms.Bhatt regarding the circular
issued by the Director General of Police, Gujarat State on
23.12.2012, even before submitting the chargesheet or
before submitting a final report, it should be submitted
through the higher officer and if the higher officer finds
the investigation to be fair, he also make an opinion
whether, the chargesheet is required to be filed against
the accused persons and then, give permission to file a
chargesheet and in case, it is found that there is no
sufficient evidence to file chargesheet, then he can also
ask for the further investigation.
15. Therefore, from the conduct of investigating officer -
Mr.Chauhan, it is found that within a period of two
months, he has completed the investigation and the
investigation has not been done properly and even
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without waiting for the opinion of the handwriting expert,
he jumped to the conclusion that no sufficient evidence
has been found and the offence has been committed in
Navsari and not in Mehsana but, in the case, the
investigation can be transferred to Navsari also, if Dy.S.P.
- Mr.Dinesh Chauhan come to the conclusion.
16. Hence, considering this, the findings recorded by the
learned Additional Sessions Judge, setting aside the order
passed by the learned Chief Judicial Magistrate,
Mehsana, who, in turn, accepted the 'B' summary report,
is found to be just and proper. I do not find any illegality
having committed by the revisional Court. I also do not
find any reason to interfere with the findings recorded by
the revisional Court, which do not warrant any
interference. Further, the revisional Court has rightly
rejected the order of the learned Chief Judicial
Magistrate, Mehsana and remitted the matter back to the
learned Chief Judicial Magistrate to decide afresh the 'B'
summary report submitted by Dy.S.P. - Mr.Chauhan.
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17. Now, the direction given by the revisional Court,
after remitting the matter to the learned Chief Judicial
Magistrate, Mehsana, that the learned Chief Judicial
Magistrate, Mehsana has to pass an appropriate order of
sending the case to the Director General of Police,
Gujarat State for appointing the honest and competent
police officer to the rank of P.I. or Dy.S.P. for making
further investigation of the case, the same is not found to
be correct in eye of law, even no Court can direct any
Judicial Officer to pass such an order. It is always a
domain of the concerned Magistrate to pass appropriate
order. Therefore, the said direction is required to be
interfered with and is also required to be set aside.
18. Hence, considering the above, the present revision
application is partly allowed. The order dated 09.05.2025
passed by the learned Additional Sessions Judge,
Mehsana in Criminal Revision Application No.74 of 2024,
allowing the revision application and setting aside the
order dated 09.10.2024 passed in Summary Report No.1
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of 2023 in C.R.No.I-74 of 2022 registered before the
Mehsana City 'B' division police station, remitting the
same to the Court of the learned Judicial Magistrate,
Mehsana to decide the same afresh, is hereby confirmed.
Further, the order passed by the learned Additional
Sessions Judge, Mehsana to the extent of direction issued
to the learned Chief Judicial Magistrate, Mehsana for
passing the appropriate order of sending the case to the
Director General of Police for appointing the honest and
competent police officer to the rank of P.I. or Dy.S.P. for
making further investigation of the case on all aspects of
the objections submitted by the previous investigating
officer - Mr.B.H. Rathod vide exh.7, is hereby quashed
and set aside.
19. The learned Chief Judicial Magistrate, Mehsana has
to decide Summary Report No.1 of 2023 filed in C.R.No.I-
74 of 2022 before the Mehsana 'B' division police station,
afresh without influenced by the observations made by
this Court as well as observations made by the learned
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Additional Sessions Judge, Mehsana, in accordance with
law.
20. Rule is made absolute to the aforesaid extent.
(L. S. PIRZADA, J)
Hitesh
