[Cites 23, Cited by 0]
Gujarat High Court
Chander Udharam Chachlani vs State Of Gujarat on 6 April, 2026
NEUTRAL CITATION
R/SCR.A/4247/2025 CAV JUDGMENT DATED: 06/04/2026
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Reserved On : 15/01/2026
Pronounced On : 06/04/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 4247 of 2025
With
R/SPECIAL CRIMINAL APPLICATION NO. 9565 of 2024
With
R/SPECIAL CRIMINAL APPLICATION NO. 9567 of 2024
With
R/SPECIAL CRIMINAL APPLICATION NO. 4249 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE M. R. MENGDEY SD/-
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Approved for Reporting Yes No
✔
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CHANDER UDHARAM CHACHLANI & ANR.
Versus
STATE OF GUJARAT & ORS.
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Appearances:
MR. B.B. NAIK, LEARNED SENIOR ADVOCATE WITH MR. EKANT G
AHUJA(5323) FOR THE PETITIONER/S.
MR. J.M. PANCHAL, LEARNED SENIOR ADVOCATE FOR THE
PETITIONER/S.
MR. PRUTHVIRAJ Y. GOHIL, LEARNED ADVOCATE FOR THE
PETITIONER/S.
MR. S.R. KHESKANI, LEARNED ADVOCATE FOR THE PETITIONER/S.
MR. H.K. PATEL, APP FOR THE RESPONDENT NOS.1 AND 2.
MS. KRUTI SHAH WITH MR. JAY N. SHAH FOR THE RESPONDENT NO.3.
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CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY
1. By filing the Special Criminal Application No.4247 of 2025 under
Articles 226 and 227 of the Constitution of India, the petitioners herein have
prayed for the following reliefs: -
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"A. To quash and set aside the order dated 24.02.2025 passed below
Exhibit 143 in Criminal Case No.3008/2005 by the learned 5th Chief
Judicial Magistrate Court, Surat and proceedings consequential thereto.
B. Pending admission, final hearing and disposal of this application to
stay the order dated 24.02.2025 passed below Exhibit 143 in Criminal
Case No.3008/2005 by the learned 5th Chief Judicial Magistrate Court,
Surat and proceedings consequential thereto.
C. To pass any other and further orders as may be deemed fit and proper
in the interest of justice."
2. By filing the Special Criminal Application No.4249 of 2025 under
Articles 226 and 227 of the Constitution of India, the petitioners herein have
prayed for the following reliefs: -
"A. To allow the present petition.
B. To issue appropriate writ, order or direction to quash and set
aside the order dated 24/2/2025 passed below Exhibit-143 in Criminal
Case No.3008 of 2005 by the Learned 5th Chief Judicial Magistrate Surat
as the order being illegal, null, and void, having been obtained through
fraud and misrepresentation as well as all the consequential proceedings
instituted thereafter.
C. That the Hon'ble Court be please to stay the implementation of
the order dated 24/2/2025 passed below Exhibit-143 in Criminal Case
No.3008 of 2005 by the Learned 5th Chief Judicial Magistrate, during
the pendency and final hearing of the present petition.
D. Direct the initiation of appropriate proceedings against
Respondent No.2 for filing a false affidavit and misleading the Court.
E. Grant any other relief(s) that this Hon'ble Court may deem just
and proper in the facts and circumstances of the case."
3. By filing the Special Criminal Application No.9565 of 2024 under
Articles 226 and 227 of the Constitution of India, the petitioners herein have
prayed for the following reliefs: -
"A. To allow the present petition.
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B. To issue appropriate writ, order or direction to quash and set
aside the notices issued in General Application No.501/2024 (Annexure
A) and all proceedings pursuant thereto undertaken or pending before
the Respondent No.2 herein i.e. the Detective Police Inspector, C.I.D.
Crime, Gandhinagar.
C. That in view of the serious apprehensions shown by the
petitioners in the facts and circumstances of the case, petitioners be
permitted to take assistance of an advocate who will sit at a visible
distance from the petitioner no. 1 and his employees as and when called
for inquiry and investigation purpose to prevent the abuse of process of
law.
D. That the petitioners also humbly pray that as the property in
question and parties are from Surat City thus the inquiry of General
Application No. 501/2024 being investigated by CID Crime
Gandhinagar be transferred to CID Crime Surat which is headed by the
Commissioner of Police Surat City and the inquiry and investigation be
supervised by the Commissioner of Police Surat City
E. That the Hon'ble Court be pleased to direct the respondent no.2 to
provide all the details pertaining to General Application No. 501/2024
and also to provide copy of the General Application No.501/2024, along
with annexures.
F. Pending admission, final hearing and disposal of the present
petition, to stay the investigation of General Application No. 501/2024
and all proceedings pursuant thereto conducted by the Respondent No.2
herein i.e. The Detective Police Inspector, C.I.D. Crime, Gandhinagar.
G. Pending admission, final hearing and disposal of the present
petition, to protect the petitioners from coercive action by Respondent
no. 2 and call for the record and progress report of investigation carried
out in connection with General Application No.501/2024 from the
Respondent No.2 herein i.e. The Detective Police Inspector, C.I.D.
Crime, Gandhinagar.
H. And to grant any other relief or pass any other order deemed fit in
the interest of justice."
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4. By filing the Special Criminal Application No.9567 of 2024 under
Articles 226 and 227 of the Constitution of India, the petitioners herein have
prayed for the following reliefs: -
"A. To allow the present petition.
B. To issue appropriate writ, order or direction to quash and set
aside the notices issued in General Application No.500/2024 (Annexure
A) and all proceedings pursuant thereto undertaken or pending before
the Respondent no. 2 herein i.e. the Detective Police Inspector, C.I.D.
Crime, Gandhinagar.
C. That in view of the serious apprehensions shown by the
petitioners in the facts and circumstances of the case, petitioners be
permitted to take assistance of an advocate who will sit at a visible
distance from the petitioners as and when petitioner no. 1 and his
employees are called for inquiry and investigation purpose, to prevent
abuse of process of law.
D. That the petitioners also humbly pray that as the property in
question and parties are from Surat City thus the inquiry of General
Application No.500/2024 being investigated by CID Crime,
Gandhinagar be transferred to CID Crime Surat which is headed by the
Commissioner of Police Surat City and the inquiry and investigation be
supervised by the Commissioner of Police Surat City.
E. That, the Hon'ble Court be pleased to direct the respondent No.2
to provide all the details pertaining to General Application No.500/2024
and also to provide copy of the General Application No. 500/2024,
along with annexures.
F. Pending admission, final hearing and disposal of the present
petition, to stay the investigation of General Application No.500/2024
and all proceedings pursuant thereto conducted by the Respondent No.2
herein i.e. The Detective Police Inspector, C.I.D. Crime, Gandhinagar.
G. Pending admission, final hearing and disposal of the present
petition, to protect the petitioners from coercive action by Respondent
No.2 and call for the record and progress report of investigation carried
out in connection with General Application No.500/2024 from the
Respondent No.2 herein i.e. The Detective Police Inspector, C.I.D.
Crime, Gandhinagar.
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H. And to grant any other relief or pass any other order deemed fit in
the interest of justice."
5. The facts in these petitions are complicated, and their history is
complex. However, the facts required to understand the dispute involved in the
present group of petitions are such that Respondent No.3 submitted an
application to CID Crime, Gandhinagar against the petitioners and the other
persons complaining about they trying to usurp his land with the help of forged
documents. The application was received by the CIR Crime, Gandhinagar on
18.03.2024 which was registered as General Application No.501 of 2024. A
request was made in the said application by Respondent No.3 to register an
offence against the petitioners on the basis of the application. Pursuant to
receipt of the application, notices were issued by CID Crime, Gandhinagar to
the petitioners asking them to remain present for the purpose of inquiry. Special
Criminal Application Nos.9565 of 2024 and 9567 of 2024 have been filed by
the petitioners challenging those notices. Special Criminal Application
Nos.8452 of 2024 and 8453 of 2024 were filed by one Himmat Bhai Haribhai
challenging the similar notices issued to him. However, those petitions were
disposed of by this Court by directing the agency not to arrest Himmat Bhai
Haribhai for period of 15 days vide order dated 12.07.2024. In Special
Criminal Application Nos.9565 of 2024 and 9567 of 2024, this Court vide
order dated 31.07.2024 had directed the respondent authorities not to arrest the
petitioners if they cooperated with the investigation. The order dated
31.07.2024 was challenged by Respondent No.3 before the Hon'ble Apex
Court by filing Special Leave to Appeal (Criminal) No.13407/2024 and other
allied applications and the Hon'ble Apex Court had granted stay against the
order dated 31.07.2024. On 06.01.2025, during the course of hearing of Special
Criminal Application Nos.9565 of 2024 and 9567 of 2024, learned Senior
Advocate appearing for the petitioners submitted before this Court that let the
State file an appropriate application under Section 173(8) of the Cr.P.C. if they
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want to go for further investigation. On 05.02.2025, Respondent No.2 herein
submitted an application before the learned Trial Court seeking permission for
further investigation. Learned Trial Court allowed the said application vide
order dated 24.02.2025 and it is against the order dated 24.02.2025 passed by
the learned Trial Court, the Special Criminal Application Nos.4247 of 2025 and
4249 of 2025 are filed by the petitioners. It is pertinent to note that the Hon'ble
Apex Court vide order dated 30.04.2025 disposed of Special Leave to Appeal
(Criminal) No.13407 of 2024 and other allied matters by, inter-alia, directing
the petitioners to cooperate with the investigation and also directing this Court
to expeditiously dispose of the present proceedings.
6. Heard learned Senior Advocate Mr. J.M. Panchal appearing for the
petitioners. He submitted that Respondent No.3 herein submitted a private
complaint before the learned Magistrate and the learned Magistrate had ordered
investigation under Section 156(3) of Cr.P.C. on the said complaint. Thereupon,
the FIR being DCB M-Case No.3 of 2004 was registered with the DCB Police
Station of Surat City. The Investigating Agency concluded the investigation and
filed charge-sheet against Four out of Six accused named in the complaint.
Thereafter, a supplementary charge-sheet came to be filed by the Investigating
agency against Five accused in the year 2011. Investigating agency submitted a
second supplementary charge-sheet against Two other accused on 18.09.2011.
In none of these charge-sheets, the petitioners herein are named either as
accused or as witnesses. Pursuant to filing of charge-sheet, the charge has also
been framed against the accused. As per the settled law, learned Magistrate has
no power to order further investigation after the cognizance of the offence has
been taken and charge is framed against the accused. On one hand, Respondent
No.3 is not remaining present before the learned Trial Court for giving his
deposition despite summons being issued to him by learned Trial Court and on
the other hand, he keeps on filing one application after the other before the
Police authorities which causes delay in trial. Respondent No.3 is not interested
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in giving his deposition before the learned Trial Court; however, he seems to be
more interested in giving such applications before the Police authorities just to
get the disputed land re-transferred in his name. He submitted that as alleged in
the complaint given by Respondent No.3 before the learned Court, some
transactions had taken place qua the disputed land in the year 2004 and for
executing those transactions, a forged power of attorney in the name of
Respondent No.3 was prepared. In the year 2007, Respondent No.3 had
executed a sale deed in favour of one Rajubhai Lakhabhai Bharwad who
promised him of getting his land cleared of all litigations. The land
admeasuring 15,000 Sq. yards was sold by Respondent No.3 to Rajubhai
Lakhabhai Bharwad for consideration of Rs.22,95,00,000/-. It is further the
case of Respondent No.3 that the said Rajubhai Lakhabhai Bharwad had paid
only a token amount of consideration at the time of execution of sale deed. The
transaction which had taken place between the Respondent No.3 and Rajubhai
Lakhabhai Bharwad has nothing to do with the transaction which had taken
place in the year 2004. However, the fact remains that when Respondent No.3
executed a sale deed in favour of Rajubhai Lakhabhai Bharwad, it signifies the
receipt of full consideration by Respondent No.3 from Rajubhai Lakhabhai
Bharwad. It is alleged in the application that on 31.08.2008, Rajubhai
Lakhabhai Bharwad executed an agreement to sale in favour of petitioner
Jaiprakash Khanchand Aswani. Thereafter, on 17.05.2011, Rajubhai Lakhabhai
Bharwad executed a sale deed qua the disputed land in favour of one Himmat
Bhai Haribhai who was working as an accountant with the petitioner Jaiprakash
Aswani. Petitioner Jaiprakash Aswani comes into picture after very long time
from the transaction of 2004 alleged in the complaint. Once Respondent No.3
herein had executed a sale deed in favour of Rajubhai Lakhabhai Bharwad, he
had nothing to do with the transactions which had taken place between
Rajubhai Lakhabhai Bharwad and Himmat Bhai Haribhai and the petitioner
Jaiprakash Aswani. If Respondent No.3 had any grievance as regards the sale
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deed executed by Rajubhai Lakhabhai Bharwad in favour of petitioner
Jaiprakash Aswani, he had all the civil remedies available to him to challenge
the said sale deed. However, he did not prefer any civil suit for challenging the
sale deed in question nor did he initiate any proceedings for recovery of the
remaining amount of consideration from Rajubhai Lakhabhai Bharwad. He
further submitted that after long delay of 11 years, in the year 2016,
Respondent No.3 herein submitted an application vide Exhibit-18 before the
learned Trial Court seeking further investigation. Learned Trial Court allowed
the said application vide order dated 04.01.2016 against which, Rajubhai
Lakhabhai Bharwad and petitioner Jaiprakash Aswani had approached this
Court by filing Special Criminal Application No.288 of 2016 and Special
Criminal Application No.1090 of 2017 respectively. This Court vide judgment
and order dated 02.03.2017 had though quashed and set aside the order passed
by the learned Trial Court, further investigation was allowed to continue.
Pursuant to the said further investigation, report came to be submitted by the
Investigating agency to the learned Trial Court. There is no reference to any
criminality committed by the petitioners in the said report. After submission of
the said report, there has been no challenge to it by Respondent No.3. He
further submitted that seven different reports have been submitted by the
Investigating agency before the learned Trial Court upon investigation being
carried out on several applications submitted by Respondent No.3 and in none
of these reports, the involvement of the petitioners in the offence has come to
fore. These reports categorically mention that the transactions which had taken
place in the year 2007 or thereafter, have nothing to do with the transaction
which had taken place in the year 2004. These reports further make it clear that
no offence as alleged in the application submitted by the Respondent No.3, is
made out against the petitioners. He submitted that all the previous reports
submitted by the Investigating agency before the learned Trial Court have been
suppressed from the learned Trial Court and the learned Trial Court has passed
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an order impugned in the petitions being Special Criminal Application
Nos.4247 of 2025 and 4249 of 2025 without applying its mind to the reports
earlier submitted by the Investigating agency. He further submitted that the
reports earlier submitted by the Investigating agency indicate the doubtful
credentials of Respondent No.3 himself as he despite having executed a sale
deed in favour of Rajubhai Lakhabhai Bharwad in the year 2007 qua the
disputed land, had entered into transactions with the third parties qua the same
parcel of land and had also received money from third parties. Thus, the
conduct on the part of the Respondent No.3 was also required to be considered
by the learned Trial Court before passing the impugned order. He further
submitted that after the notices were issued to the petitioners by Respondent
No.2 agency, the petitioners herein have cooperated with the investigation and
the documents which were in possession of the petitioners have already been
tendered by them to the Investigating agency. The documents to which the
petitioners are not parties, are not in their possession, and therefore, those
documents could not be supplied to the Investigating agency by the petitioners.
However, the Investigating agency is still insisting with the petitioners to
supply the documents which are not at all in their possession. Thus, the
petitioners have fully cooperated with the Investigating agency and have also
provided all the information which they were possessing to the Investigating
agency. The applications submitted by Respondent No.3 to the CID Crime,
Gandhinagar is nothing, but an arm twisting tactic adopted by Respondent No.3
to get the transactions in question reverse in his favour. Learned Senior
Advocate has sought to rely upon the following judgments in support of his
submissions: -
(i) Judgment delivered by the Hon'ble Apex Court in case of
Vinubhai Haribhai Malaviya and Others versus State of
Gujarat and Another reported in (2019) 17 SCC;
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(ii) Judgment delivered by the Hon'ble Apex Court in case of Anant
Thanur Karmuse Versus State of Maharashtra And Others
reported in (2023) 5 Supreme Court Cases 802;
7. Learned Senior Advocate Mr. B.B. Naik appearing for some of the
petitioners submitted that what is being sought to be investigated by resorting
to further investigation, has nothing to do with the original offence which is
pending before the learned Trial Court in the form of Criminal Case No.3008 of
2005 and other allied cases. As per the settled law, the facts which are not
connected with the original offence, cannot be permitted to be brought on
record by way of further investigation. He also submitted that the learned
Magistrate before passing the impugned order, had not verified the earlier
reports submitted by the Investigating Officer. He submitted that the first
application for further investigation was submitted by the Respondent No.3
vide Exhibit-12 on 08.08.2007, however prior thereto, he had already executed
a sale deed in favour of Rajubhai Lakhabhai Bharwad. Another application
came to be submitted by Respondent No.3 for further investigation vide
Exhibit-18 and the said application was allowed by the learned Magistrate in
the year 2016 and pursuant to the said order, further investigation was carried
out, and the report was submitted by the Investigating agency before the
learned Trial Court. Thus, the exercise of further investigation has already been
carried out on several occasions, and the reports thereto have also been
submitted by the Investigating agency before the learned Trial Court. Pursuant
to the application being filed by Respondent No.3 with the CID Crime,
Gandhinagar, the petitioners herein have been repeatedly summoned by
Respondent No.2 on one pretext or the other. Thus, Respondent No.2 agency is
playing in the hands of Respondent No.3. The action on the part of Respondent
No.2 in repeatedly calling the petitioners for the purpose of inquiry, is violative
of Article 21 of the Constitution of India as this causes tremendous mental
trauma and harassment to the petitioners. The petitioners who are reputed
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citizens of Surat city, have been asked to remain present before the Respondent
No.2 herein which also tarnishes their image in the society. He further
submitted in the first application submitted by the Respondent No.3 for further
investigation, on 08.10.2007 there was no allegation whatsoever as regards the
sale deed in question. Similarly, in the application submitted vide Exhibit-16 on
29.10.2010, there is no allegation about any sale deed though Respondent No.3
was very much aware about the said fact. The application vide Exhibit-18 came
to be submitted by Respondent No.3 before the learned Trial Court after the
charge was framed against the accused persons. In the said application, the
allegations were levelled only against Rajubhai Lakhabhai Bharwad,
Jaiprakash Aswani and Sandeep Mehta. However, thereafter no application
came to be submitted to the learned Trial Court seeking further investigation
either by Respondent No.2 or Respondent No.3 before the learned Trial Court.
He further submitted that as per the settled law, a fishing and roving inquiry
cannot be permitted with the use of powers under Section 173(8) of the Cr.P.C.
Earlier Eleven (11) reports have been submitted by the respective Investigating
Officers and the learned Magistrate ought to have considered those reports
before passing the impugned order. Though the reports earlier submitted by the
respective Investigating agencies do not speak about any involvement of the
petitioners herein, Respondent No.3 herein has not challenged any of those
reports and has instead submitted an application to Respondent No.2 in the year
2024. He also submitted that if the grievance raised by Respondent No.3 in his
application submitted to Respondent No.2 was genuine, he ought to have
approached the local Police authorities of Surat. However, he instead of doing
so, had submitted an application to Respondent No.2 and has used his influence
over Respondent No.2 against the petitioners. He further submitted that the
only grievance of Respondent No.3 is regarding non-payment of the agreed
amount of consideration by Rajubhai Lakhabhai Bharwad for the sale deed
which was executed in his favour by Respondent No.3. He further submitted
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that even if it is assumed for the sake of argument that the transactions entered
into between the parties in the year 2007 and thereafter, amount to an offence
then also it would be an offence independent of the offence which is alleged in
the FIR being M-Case No.3 of 2004 registered with the DCB Police Station.
Learned Senior Advocate has sought to rely upon the following judgments in
support of his submissions: -
(i) Judgment delivered by the Hon'ble Apex Court in case of Vinay
Tyagi versus Irshad Ali Alias Deepak and Others reported in
(2013) 5 Supreme Court Cases 762;
(ii) Judgment delivered by the Hon'ble Apex Court in case of K.
Vadivel Versus K. Shanthi & Ors. reported in 2024 (0) AIJEL-
SC 74091;
(iii) Judgment delivered by the Hon'ble Apex Court in case of Shafin
Jahan v. Asokan K. M and Ors. reported in AIR 2018
Supreme Court 1933;
(iv) Judgment delivered by the Hon'ble Apex Court in case of
Swarka Nath Appellant v. Income-tax Officer, Special Circle,
D Ward, Kanpur and another reported in AIR 1966 Supreme
Court 81;
(v) Judgment delivered by the Hon'ble Apex Court in case of Rama
Chaudhary Versus State of Bihar reported in (2009) 6
Supreme Court Cases 346 and
(vi) Judgment delivered by the Hon'ble Apex Court in case of Divine
Retreat Centre Versus State of Kerala And Another reported
in (2008) 3 Supreme Court Cases 542.
8. In addition to the aforesaid oral submissions canvassed on behalf of the
petitioners, written submissions have also been filed on record and the same
have also been taken into consideration.
9. Learned APP Mr. H.K. Patel appearing for the Respondent Nos.1 and 2
has opposed the present petitions. He submitted that the Hon'ble Apex Court
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vide order dated 30.04.2025 passed in Special Leave to Appeal (Criminal)
No.13407 of 2024 and other allied matters, has directed the petitioners to
cooperate with the ongoing investigation. The Hon'ble Apex Court has also
observed that in case the petitioners herein do not cooperate with the ongoing
investigation, appropriate orders can be sought before the Hon'ble High Court
including to proceed with any coercive measures. Despite the aforesaid orders
of the Hon'ble Apex Court, the petitioners herein have not been cooperating
with the investigation. He further submitted that the Investigating agency i.e.,
Respondent No.2 herein has given a list of Seventeen (17) documents to
petitioner Jaiprakash Aswani. The investigation carried out so far reveals that
those documents are in possession of the petitioner Jaiprakash Aswani.
However, a false excuse is taken by him that the documents are not in his
possession. He further submitted that the premises of the said Jaiprakash
Aswani was raided by the Income Tax authorities and during the said raid, the
Memorandum of Understanding entered between Rajubhai Lakhabhai Bharwad
and Respondent No.3 was recovered from his place, though it was earlier
claimed by Jaiprakash Aswani that he was not in possession of the said
documents. Thus, an absolute false stand has been taken about the documents
which are asked for, are not in his possession. He further submitted that Special
Criminal Application Nos.9565 of 2024 and 9567 of 2024 are filed by the
petitioners challenging the notices issued to them by Respondent No.2.
However, as the Hon'ble Apex Court has directed the petitioners to cooperate
with the ongoing investigation, the challenge made to the said notices has lost
its significance, and therefore, these two petitions would not survive and the
same should be dismissed for having become infructuous. So far as Special
Criminal Application Nos.4247 of 2025 and 4249 of 2025 are concerned, in
those petitions, the challenge is made to the order passed by the learned
Magistrate allowing the application filed by the Respondent No.2 for further
investigation. He submitted that the documents which are sought for by
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Respondent No.2 from the petitioners are very crucial for taking the
investigation to its logical conclusion and for recovery of those documents, the
further investigation is necessary. He further submitted that pursuant to the
order of this Court dated 19.11.2025, the petitioners have remained present
before the Investigating agency and have furnished several documents out of
the list of Seventeen (17) documents. This indicates that the remaining
documents are also in possession of the petitioners herein and those documents
have been intentionally withheld by the petitioner. He also submitted that the
petitioners herein have no locus to challenge the order passed by the learned
Trial Court on 24.02.2025 allowing the application submitted by the
Respondent No.2 for further investigation as till date they have not been
arraigned as accused in the present case. He, therefore, submitted to dismiss the
petitions.
10. Learned Advocate Ms. Kruti Shah appearing for the Respondent No.3
has also opposed the present petitions. She submitted that on 06.01.2025,
during the course of hearing of Special Criminal Application Nos.9565 of 2024
and 9567 of 2024, it was submitted by the learned Senior Advocate appearing
for the petitioners before this Court that the Investigating Officer should file an
application for further investigation under Section 173(8) of Cr.P.C. before the
learned Trial Court if he proposes to carry out further investigation, and
therefore, Respondent No.2 herein submitted an application before the learned
Trial Court seeking permission for further investigation which is allowed by the
learned Trial Court vide order dated 24.02.2025 and now, the petitioners are
before this Court challenging the said order. The petitioners herein are blowing
hot and cold at the same time as on one hand, they are submitting before this
Court that the Investigating Officer may file an application under Section
173(8) of the Cr.P.C. and when such application is filed and the same is
allowed, they are challenging the said order. She further submitted that the
challenge to the order of the learned Trial Court dated 24.02.2025 by the
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petitioners, is not maintainable since the petitioners herein have no locus to
challenge the said order as till date, they are not the accused in the present case.
She further submitted that despite the order of the Hon'ble Apex Court, the
petitioners herein have not been cooperating with the Investigation. She
submitted that though the petitioners are in possession of the relevant
documents, they are not being submitted to the Investigating Officer by them
with an intention to suppress those documents. She, therefore, submitted to
dismiss the petitions. Learned Advocate has sought to rely upon the following
judgments in support of her submissions: -
(i) Judgment delivered by the Hon'ble Apex Court in case of State
Through Central Bureau of Investigation vs. Hemendhra
Reddy and Anr.;
(ii) Judgment delivered by the Hon'ble Apex Court in case of
Ramachandraiah & Anr. Versus M. Manjula;
(iii) Judgment delivered by the Hon'ble Apex Court in case of
Rampal Gautam & Ors. Versus The State by Mahadevapura
Police Station, Mahadevapura, Bengaluru & Anr.
(iv) Judgment delivered by the Hon'ble Apex Court in case of
Hasanbhai Valibhai Qureshi Versus State of Gujarat and
Others reported in (2004) 5 Supreme Court Cases 347.
11. In addition to the aforesaid oral submissions made by the learned Advocate
appearing for the Respondent No.3, she has also submitted the written submissions on
record which have also been taken into consideration.
12. Heard learned Advocates appearing for the respective parties. Special Criminal
Application Nos.9565 of 2024 and 9567 of 2024 have been preferred by the
petitioners challenging notices issued to them by Respondent No.2 herein. In these
petitions, on 31.07.2024, the Coordinate Bench of this Court had passed an order that
subject to cooperation by the petitioners till the next date of hearing, there shall not be
any coercive steps against them. Being aggrieved of the said order, Respondent No.3
herein had approached the Hon'ble Apex Court by filing Special Leave to Appeal
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(Criminal) Nos.13407 - 13408 of 2024 and the Hon'ble Apex Court while disposing
of those proceedings vide order dated 30.04.2025, had directed the petitioners herein
to cooperate with ongoing investigations and if they don't cooperate, it was left open
for the Investigating agency to approach this Court for taking coercive steps against
them. Thus, as per the order of the Hon'ble Apex Court dated 30.04.2025, the
petitioners are mandated to cooperate with the investigation, and therefore, the cause
to challenge the notices impugned in these petitions does not survive any more, and
therefore, these two petitions deserve to be dismissed.
13. The record indicates that during the course of hearing of the aforesaid two
petitions, on 06.01.2025 a submission was made by the learned Senior Advocate Mr.
B.B. Naik appearing for the petitioners asking the State to file an application for
further investigation if it wants to go for further investigation. The Coordinate Bench
of this Court recorded this submission in its order dated 06.01.2025. Pursuant to the
aforesaid submission being made, Respondent No.2 herein submitted an application
for further investigation before the learned Trial Court on 05.02.2025 and the same
was allowed by the learned Trial Court vide order dated 24.02.2025. It is required to
be noted at this stage that in the application which is submitted by Respondent No.3
before the CID Crime, Gandhinagar, a request is made to register an offence against
the petitioners under Sections 420, 462, 463, 464, 465, 467 and 468 of the IPC.
Pursuant to the said application, notices were issued by the Respondent No.2 to the
petitioners which were challenged before this Court. Thus, to prevent registration of
an offence against the petitioners, a submission is made before this Court that the
Investigating agency may file an application before the learned Trial Court seeking
permission for further investigation and now, when such application is filed and the
same is allowed, the same is challenged by filing the other set of petitions. Thus, it
appears that the petitioners are trying to avoid the process of law. The petitioners
herein are apprehending them being arraigned as accused in the offence. The
apprehension appears to be misplaced at this stage. Assuming for the sake of
arguments that the petitioners will be arraigned as accused at the end of further
investigation, they have all the statutory remedies at their command which can be
taken help of by the petitioners against their implication. It is also required to be noted
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at this stage that earlier an application vide Exhibit-18 was submitted by Respondent
No.3 herein before the learned Trial Court seeking further investigation into the
offence. The said application was allowed by the learned Trial Court. Against the said
order, petitioner Jaiprakash Aswani had approached this Court by filing Special
Criminal Application No.1090 of 2017. This Court had though quashed and set aside
the order passed by the learned Trial Court below Exhibit-18, it was kept open to the
Investigating agency to carry out further investigation. The arguments which are
sought to be canvassed before this Court against the order dated 24.02.2025 were
already examined by this Court while passing the judgment and order dated
02.03.2017 in the aforesaid petitions. Therefore, now it does not lie in the mouth of
the petitioners to challenge the order impugned in the petition. Secondly, it is required
to be noted that none of the petitioners before this Court have been arraigned as
accused in the offence as yet. This Court in its judgment and order dated 02.03.2017
passed in Special Criminal Application No.1090 of 2017 and other allied matter, has
observed in Paragraph-18(i) as under: -
"18(I) The applicants have no locus in law to question the legality and
validity of the order of further investigation, they not being the accused as on
date. Mere likelihood of being arraigned as the accused or mere likelihood of
being affected in one way or the other by the order of further investigation,
would not vest in them the right to question the legality and validity of an
order of further investigation."
14. The decision of the Hon'ble Apex Court in case of Satishkumar Nyalchand
Shah Vs. State of Gujarat reported in (2020) 4 SCC 22 also requires to be referred
to at this stage. The Hon'ble Apex Court in Paragraph-10 of the said judgment has
observed as under: -
"10. Having heard the learned counsel appearing on behalf of the respective
parties and the private respondent herein, we are of the opinion that as such no
error has been committed by the High Court in dismissing the application
submitted by the appellant herein to implead him in the special criminal
application filed by the private respondent herein challenging the order passed
by the learned Chief Judicial Magistrate rejecting his application for further
investigation under Section 173(8) CrPC with respect to one other accused,
namely, Shri Bhaumik against whom no charge-sheet has been filed till date.
Therefore, it is not at all appreciable how the appellant against whom no relief
is sought for further investigation has any locus and/or any say in the
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application for further investigation under Section 173(8) CrPC. How he can
be said to be a necessary and a proper party. It is required to be noted that, as
such, even the proposed accused Shri Bhaumik shall not have any say at this
stage in an application under Section 173(8) CrPC for further investigation, as
observed by this Court in W.N. Chadha; Narender G. Goel and Dinubhai
Baghabhai Solankis. In Dinubhai Baghabhai Solanki after considering another
decision of this Court in Sri Bhagwan Samardha Sreepada Vallabha Venkata
Vishwanandha Maharaj v. State of A.P., it is observed and held that there is
nothing in Section 173(8) CrPC to suggest that the court is obliged to hear the
accused before any direction for further investigation is made. In Sri Bhagwan
Samardhas, this Court in para 11 held as under: (Sri Bhagwan Samardha cases,
SCC p. 743)
"11. In such a situation the power of the court to direct the police to
conduct further investigation cannot have any inhibition. There is
nothing in Section 173(8) to suggest that the court is obliged to hear
the accused before any such direction is made. Casting of any such
obligation on the court would only result in encumbering the court
with the burden of searching for all the potential accused to be afforded
with the opportunity of being heard. As the law does not require it, we
would not burden the Magistrate with such an obligation."
15. Similarly, the judgment of the Hon'ble Apex Court in case of
Ramchandraiah & Anr. Vs. M. Manjula & Ors. also needs to be referred to at this
stage. In this judgment, the Hon'ble Apex Court in Paragraph-14 after referring to the
case of Union of India & Anr. vs. W.N. Chandha, has observed as under: -
"14. It is settled in the matter of Union of India & Anr. Vs. W.N. Chandha,
(1993) Supp (4) SCC 260 that a prospective accused has no right to be heard
at the stage of registration of FIR. Although the appellants have not succeeded
in their challenge to the lodging of the FIR, having abandoned the challenge
by withdrawing Crl. M.P No.2642 of 2020 in the High Court, yet, we are
referring to the principles so as to deal with the argument raised by Mr. Lekhi.
The following is held in para 92:
"92. More so, the accused has no right to have any say as regards the
manner and method of investigation. Save under Certain exceptions
under the entire scheme of the Code, the accused has no participation
as a matter of right during the course of the investigation of a case
instituted on a police report till the investigation culminates in filing of
a final report under Section 173(2) of the Code or in a proceeding
instituted otherwise than on a police report till the process is issued
under Section 204 of the Code, as the case may be. Even in cases
where cognizance of an offence is taken on a complaint
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notwithstanding that the said offence is triable by a Magistrate or
triable exclusively by the Court of Sessions, the accused has not right
to have participation till the process is issued. In case the issue of
process is postponed as contemplated under Section 202 of the Code,
the accused may attend the subsequent inquiry but cannot participate.
There are various judicial pronouncements to this effect, but we feel
that it is not necessary to recapitulate those decisions. At the same
time, we would like to point out that there are certain provisions under
the Code empowering the Magistrate to give an opportunity of being
heard under certain specified circumstances."
16. Thus, for the facts stated hereinabove and having regard to the settled
propositions of law as referred to hereinabove, the petitioners herein have no locus to
challenge the order dated 24.02.2025 passed by the learned Trial Court on an
application submitted by Respondent No.2 vide Exhibit-143. It is also argued that
learned Magistrate could not have passed the impugned order without hearing the
petitioners. The judgment of the Apex Court in case of Divine Retreat Centre
(Supra) is also pressed into service. However, in view of the aforesaid discussion,
this argument is not tenable.
17. It is argued on behalf of the petitioners that the matter which is sought to be
investigated by resorting to further investigation, is not connected with the main
offence for which the FIR No. M-Case No.3 of 2004 has been registered. The
petitioners herein are alleged to have acted in collusion with one Rajubhai Lakhabhai
Bharwad. At the cost of repetition, it is required to be noted that Respondent No.3
herein submitted an application vide Exhibit-18 before the learned Trial Court praying
for further investigation. The said application came to be allowed by the learned Trial
Court against which Rajubhai Lakhabhai Bharwad and the petitioner Jaiprakash
Aswani had approached this Court by filing Special Criminal Application No.288 of
2016 and Special Criminal Application No.1090 of 2017 respectively. This Court vide
order dated 02.03.2017 passed in these petitions had though quashed the order passed
by the learned Trial Court holding that the learned Trial Court had no power to order
further investigation suo moto or on an application given by the complainant since the
cognizance of the offence had already been taken, it had kept it open for the
Investigating agency to undertake further investigation. Therefore, it is not open to
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petitioners to contend now that something new is sought to be brought on record by
taking recourse to further investigation. As per the fact emerging from the record, it
appears that in the year 2004, a transaction had taken place qua the disputed land
which belonged to the Respondent No.3 herein and for the said transaction, a power
of attorney in the name of Respondent No.3 herein and several other documents were
forged. Several litigations were going on in that regard including Criminal Case
No.3008 of 2005. In the year 2007, Rajubhai Lakhabhai Bharwad had promised
Respondent No.3 for getting his land cleared from all the litigations and had asked
Respondent No.3 to execute a sale deed in his favour. Resultantly, Respondent No.3
had executed a sale deed in favour of Rajubhai Lakhabhai Bharwad in the year 2007
for consideration of Rs.22,95,00,000/-. It is the case of Respondent No.3 that the said
Rajubhai Lakhabhai Bharwad has not paid the full amount of consideration upon
execution of sale deed in his favour. On 31.03.2008, the said Rajubhai Lakhabhai
Bharwad had executed an agreement to sell in favour of Jaiprakash Aswani qua the
disputed land. Thereafter, on 17.05.2011, the said Rajubhai Lakhabhai Bharwad
executed a sale deed qua the disputed land in favour of one Himmat Bhai Haribhai. It
also comes on record that the cheques which are referred to in the agreement to sell
dated 31.03.2008 towards payment of consideration, have also been referred to in the
sale deed dated 17.05.2011 in favour of Himmat Bhai Haribhai. Thus, at this stage it
cannot be said that the dispute raised by Respondent No.3 in his application submitted
to Respondent No.2, was different than the original offence. These facts make all
these aspects being investigated. This would nullify the argument made on behalf of
the petitioner with the support of the judgment of the Apex Court in case K. Vadivel
(Supra) that further investigation can be resorted only in exceptional cases. Apart
from this, as noted herein above, it was contended on behalf of the petitioners on
06.01.2025 that the State may prefer an application for further investigation if it wants
and it was there after only that an application for further investigation was submitted
before the learned trial court. Therefore, now it would not be open for the petitioners
to contend that it has no connection with the actual offence. Reliance placed on the
judgments in case of Rama Chaudhary (Supra) and Vinay Tyagi (Supra) are also
misplaced in view of the aforesaid discussion.
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18. It is sought to be contended on behalf of the petitioners that prior to the order
of the learned Trial Court dated 24.02.2025, several other reports were submitted by
respective Investigating Officers pursuant to the investigation carried out by them
upon different applications submitted by Respondent No.3 herein. In the application
which was submitted by Respondent No.2 before the learned Trial Court on
05.02.2025, it is mentioned that the then Investigating Officer had not carried out
proper investigation before submitting the report to the Court. It is the duty of the
Investigating agency as well as of the Court to find out the truth and when it is
brought to the notice of the Court that the investigation carried out earlier was not
proper, it is incumbent upon the Court to order further investigation in the larger
interest of justice. The reference to the decision of the Hon'ble Apex Court in case of
Pooja Pal vs. Union of India and Others reported in (2016) 3 SCC 135 is necessary
wherein the Hon'ble Apex Court in Paragraph-83 has observed that "as
fundamentally, justice not only has to be done but also must appear to have been
done, the residuary jurisdiction of a court to direct further investigation or
reinvestigation by any impartial agency, probe by the State Police notwithstanding,
has to be essentially invoked if the statutory agency already in charge of the
investigation appears to have been ineffective or is presumed or inferred to be not
being able to discharge its functions fairly, meaningfully and fructuously. As the cause
of justice has to reign supreme, a court of law cannot reduce itself to be a resigned
and a helpless spectator and with the foreseen consequences apparently unjust, in the
face of a faulty investigation, meekly complete the formalities to record a foregone
conclusion." It is also submitted on behalf of the petitioners that the reports earlier
submitted by the Investigating agency have not been challenged by Respondent No.3.
Merely because those reports have not been challenged by Respondent No.3, the
Investigating agency i.e., Respondent No.2 herein is not precluded from making an
application to the learned Trial Court seeking permission for further investigation.
19. It is further contended that the cognizance of the offence has been taken by the
learned Trial Court and the charge has also been framed against the accused, and
therefore, the learned Trial Court had no powers to order further investigation. It is
required to be noted in this regard that the petitioners herein have not been arraigned
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as accused in the offence in question, and therefore, there is no question of the
cognizance of the offence being taken against them and framing of charge, and
therefore, the embargo as sought to be canvassed would not be applicable to the facts
of the present case. The Hon'ble Apex Court in its judgment in case of Vinubhai
Haribhai Malaviya And Others (Supra) has held that the order of further
investigation can be passed by the learned Magistrate till the charge is framed against
the accused. The logic behind the proposition of law laid down by the Apex Court is
that if further investigation is permitted even after the charge is framed against the
accused, it may affect the his/her defense prejudicially. Permitting further
investigation after framing of charge may bring some new material on record which
would not be made known to the accused before framing of charge and therefore,
further investigation is not allowed against the accused against whom charge is
already framed. It is also required to be noted that the accused against whom charge is
framed, are not before this court. Therefore, this judgment would not be applicable to
the facts of the present case in view of the facts stated hereinabove.
20. It is further argued that calling the petitioners again and again for the purpose
of inquiry/investigation is violative of Article 21 of the Constitution of India. The
Hon'ble Apex Court in its judgment in case of State Through Central Bureau of
Investigation vs. Hemendhra Reddy and Anr. has observed in Paragraph-77(iv) as
under: -
"Further investigation is merely a continuation of the earlier investigation,
hence it cannot be said that the accused are being subjected to investigation
twice over. Moreover, investigation cannot be put at par with prosecution and
punishment so as to fall within the ambit of Clause (2) of Article 20 of the
Constitution. The principle of double jeopardy would, therefore, not be
applicable to further investigation."
21. Therefore, the argument that the action on the part of the Respondent No.2 in
calling the petitioners for inquiry/investigation is violative of Article 21 of the
Constitution of India, does not hold good in view of the aforesaid observations of the
Hon'ble Apex Court.
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22. Lastly, it was submitted that Respondent No.3 herein goes on filing one
application after the other before the learned Trial Court which has caused delay in
conclusion of trial in Criminal Case No.3008 of 2005 and other allied cases. It is
contended that allowing the further investigation at this stage would further delay the
trial of the case referred to hereinabove. The Hon'ble Apex Court in its judgment in
case of Hemendhra (Supra) in Paragraphs-83 and 84 has observes as under: -
"83. It was vehemently submitted on behalf of the accused that further
investigation if permitted after such a long lapse of time, would result in delay
in trial. For years to come, the sword of Damocles should not be kept hanging
on the neck of the accused persons. In such circumstances, it was argued
before us that keeping in mind that this litigation is now almost more than a
decade old, it will not be in fitness of things to put the accused persons to trial.
84. In the aforesaid context, we may only say that the general rule of
criminal justice is that "a crime never dies". The principle is reflected in the
well-known maxim nullum tempus aut locus occurrit regi (lapse of time is no
bar to Crown in proceeding against offenders). It is settled law that the
criminal offence is considered as a wrong against the State and the Society
even though it has been committed against an individual Normally, in serious
offences, prosecution is launched by the State and a Court of law has no power
to throw away prosecution solely on the ground of delay. Mere delay in
approaching a Court of law would not by itself afford a ground for dismissing
the case, Though it may be a relevant circumstance in reaching a final
verdict."
23. Therefore, this argument also does not help good in view of the aforesaid
observations of the Hon'ble Apex Court.
24. Having regard to the aforesaid discussions, all the petitions being devoid of
any merit, are hereby dismissed.
(M. R. MENGDEY,J)
RAVI OZA
25. After the Judgment was pronounced, learned Sr. Advocate B.B. Naik prayed
for the continuation of the interim arrangement granted earlier by the Hon'ble Apex
Court for a period of four weeks.
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In view of the request made by the learned Senior Advocate Mr. B.B. Naik, the
interim arrangement which was continuing, shall continue to operate for a further
period of two weeks.
SD/-
(M. R. MENGDEY,J)
RAVI OZA
