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2020 Supreme(Guj) 308
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
UMESH A. TRIVEDI, J.
Vasantbhai Haribhai Gajera – Appellant
Versus
State of Gujarat – Respondent
Criminal Misc. Application Nos. 15602, 23874 of 2019
Decided On : 24-02-2020
Advocate Appeared:
For the Appellants : Mr. I.H. Syed, Mr. Chirag B. Upadhyay.
For the Respondents: Mr. B.M. Mangukiya, Dr. Shailesh R. Patel, Ms. Bela A. Prajapati, Ms. Moxa Thakkar.
Point of law:
It has been a procedure of propriety that the police has to seek permission of the court to continue "further investigation" and file supplementary charge-sheet. This approach has been approved by this Court in a number of judgments. This as such would support the view that we are taking in the present case.
Headnote:
Indian Panel Code - Sections 406, 420, 465, 467, 468, 471, 474, 120(B), 114 and 34 - petitioner has prayed for very same relief by way of a substantive petition being Special Criminal Application - Lordships may be pleased pending admission final hearing and disposal of this petition to stay further proceedings of Criminal Case - Pending before Hon'ble Chief Judicial Magistrate Court - Applicant submitted that in offence registered against co-accused there was a Closure Report in respect of applicant filed on unless that Closure Report is adjudicated police cannot of their own direct further investigation without leave of Court - He has further submitted that original first informant vide Special Criminal Application requested this Court for further investigation into his complaint and act in furtherance of report ensuring a fair and proper investigation in consonance with and as provided Code at earliest - This Court vide an order disposed of said petition on statement being made by concerned Assistant Commissioner of Police - Division who was present before Court that further investigation is going on - However according to his submission said order came to be challenged by applicant before Supreme Court - Held, Court would ordinarily be desirable that police should inform Court and seek formal permission to make further investigation when fresh facts pointing towards inappropriate illegal investigation calling for punitive action against earlier officer come to light instead of being silent over matter keeping in view only need for an early trial since an effective trial for real or actual offence found during course of proper investigation is as much relevant desirable and necessary as an expeditious disposal of matter by Court - Appeal Allowed (para 21)
Facts of the Case:
In the offence registered against co-accused, there was a Closure Report, in respect of applicant, filed on 2.6.2014 and unless that Closure Report is adjudicated, the police cannot of their own direct further investigation without the leave of the Court. He has further submitted that the original first informant vide Special Criminal Application No. 2339 of 2018 requested this Court for further investigation into his complaint and act in furtherance of report dated 13.3.2012 and 24.11.2014 ensuring a fair and proper investigation in consonance with and as provided under Section 170 of the Code at the earliest.
Finding of the Court:
Court would ordinarily be desirable that police should inform Court and seek formal permission to make further investigation when fresh facts pointing towards inappropriate illegal investigation calling for punitive action against earlier officer come to light instead of being silent over matter keeping in view only need for an early trial since an effective trial for real or actual offence found during course of proper investigation is as much relevant desirable and necessary as an expeditious disposal of matter by Court.
Result: Appeal Allowed
ORDER :
Criminal Misc. Application No. 15602 of 2019
1. An apt accused, who has filed so many litigations before so many Courts, may be within his right, filed this application praying following reliefs:
“7(B) Your Lordships may be pleased to quash and set aside the investigation conducted by the Police after filing of the Closure Report dated 02.06.2014 and the charge-sheet culminated into Criminal Case No. 33212 of 2019 arising out of the FIR being M. Case No. 03 of 2003 registered with DCB Police Station, Surat, under Sections 406, 420, 465, 467, 468, 471, 474, 120(B), 114 and 34 of IPC pending before the Chief Judicial Magistrate, Surat.
7(C) Your Lordships may be pleased, pending admission, final hearing and disposal of this petition, to stay the further proceedings of Criminal Case No. 33212 of 2019 pending before the Hon’ble Chief Judicial Magistrate Court, Surat.”
2. However, the very petitioner has prayed for very same relief by way of a substantive petition being Special Criminal Application No. 5107 of 2018, which came to be withdrawn on 26.8.2018 from this Court. The details about sameness of the prayers and the relief claimed would be dealt with later on.
3. Mr. I.H. Syed, learned senior counsel for Mr. Chirag Upadhyay, learned advocate for the applicant submitted that in the offence registered against co-accused, there was a Closure Report, in respect of applicant, filed on 2.6.2014 and unless that Closure Report is adjudicated, the police cannot of their own direct further investigation without the leave of the Court. He has further submitted that the original first informant vide Special Criminal Application No. 2339 of 2018 requested this Court for further investigation into his complaint and act in furtherance of report dated 13.3.2012 and 24.11.2014 ensuring a fair and proper investigation in consonance with and as provided under Section 170 of the Code at the earliest. This Court vide an order dated 20.4.2018, disposed of the said petition on the statement being made by concerned Assistant Commissioner of Police (ACP) ‘F’ Division, who was present before the Court that further investigation is going on. However, according to his submission, the said order came to be challenged by the applicant before the Supreme Court. Drawing attention to the order of the Supreme Court, which is at page No. 76, he submitted that when Supreme Court has directed the consideration of Closure Report, further investigation could not have been continued and charge-sheet could not have been filed against the applicant. It is further submitted that Supreme Court has directed the concerned Chief Judicial Magistrate (CJM) Surat to consider the objection and decide whether any further investigation is required or not. According to his submission, the complainant was not allowing the matter to get proceeded which is apparent from the filing of Special Criminal Application No. 11481 of 2019 praying for transfer of proceedings from Chief Judicial Magistrate alleging bias against him. According to his submission, this Court had directed to decide upon the report in accordance with law in view of Supreme Court order dated 5.9.2018. He has further submitted that without waiting for the outcome of the Closure Report, the Police Authority has submitted the charge-sheet pursuant to further investigation conducted by them. According to the submission of learned senior counsel the filing of the charge-sheet pursuant to further investigation prior to the adjudication of Closure Report is in violation of Supreme Court order dated 5.9.2018 and it is contemptuous. According to his submission, therefore, the present petition came to be filed praying to quash and set aside the investigation conducted by the police after filing of the Closure Report dated 2.6.2014 and the Charge-sheet culminated into Criminal Case No. 33212 of 2019. He has submitted that the Hon’ble Court issued notice on 14.8.2019 in the present petition recording as under:
“Considering the
