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R/CR.RA/44/2012 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION NO. 44 of 2012
With
CRIMINAL MISC.APPLICATION NO. 1746 of 2012
In CRIMINAL REVISION APPLICATION NO. 44 of 2012
With
SPECIAL CRIMINAL APPLICATION NO. 1131 of 2012
For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH
Sd/
=============================================
1.
Whether Reporters of Local Papers may be allowed to see
the judgment ?
Yes
2.
To be referred to the Reporter or not ?
Yes
3.
Whether their Lordships wish to see the fair copy of the
judgment ?
No
4.
Whether this case involves a substantial question of law as to
the interpretation of the constitution of India, 1950 or any
order made thereunder ?
No
5.
Whether it is to be circulated to the civil judge ?
No
=============================================
NITINBHAI MANGUBHAI PATEL....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
=============================================
Appearance:
Criminal Revision Application No.44/2012
MR SV RAJU, SR. ADVOCATE with MR AB MUNSHI, ADVOCATE for the Applicant
MR RJ GOSWAMI, ADVOCATE for the Respondent No. 2
MR MAULIK NANAVATI, SPL. PUBLIC PROSECUTOR for the Respondent No. 1
Special Criminal Application No.1131/2012
MR NM KAPADIA, ADVOCATE for the Applicants
MR MAULIK NANAVATI, SPL. PUBLIC PROSECUTOR for the Respondent
=============================================
CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
Date : 05/08/2013
COMMON CAV JUDGMENT
[1.0]
As both these, Revision Application as well as the Special
Criminal Application arise out of the common judgment and order
passed by the learned Revisional Court – learned Sessions Court, Surat,
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both these applications are heard, decided and disposed of by this
common judgment and order.
[1.1]
RULE. So far as Criminal Revision Application No.44 of
2012 is concerned, Shri R.J. Goswami, learned advocate waives service
of notice of Rule on behalf of the respondent No.2 herein and Shri
Maulik Nanavati, learned Special Public Prosecutor waives service of
notice of Rule on behalf of respondent No.1 State as well as the
Investigating Officer. Similarly, so far as RULE in Special Criminal
Application No.1131 of 2012 is concerned, Shri Maulik Nanavati,
learned Special Public Prosecutor waives service of notice of Rule on
behalf of respondent State of Gujarat. In the facts and circumstances of
the case and with the consent of learned advocates appearing on behalf
of the respective parties, present Revision Application as well as Special
Criminal Application are taken up for final hearing and heard finally.
[2.0]
Criminal Revision Application No.44 of 2012 has been
preferred by the applicant herein – original complainant to quash and
set aside the impugned judgment and order dated 10.01.2012 passed by
the learned Sessions Court – learned 2nd Additional Sessions Judge,
Surat in Criminal Revision Application No.376 of 2011 by which the
learned Revisional Court has allowed the said Revision Application
preferred by the respondent No.2 herein – original accused and has
quashed and set aside the order dated 24.08.2011 passed by the learned
Additional Chief Judicial Magistrate, Surat by which the learned
Magistrate rejected the application Exh.28 submitted by respondent
No.2 – original accused for furtherinvestigation under Section 173(8) of
the Code of Criminal Procedure, 1973 (hereinafter referred to as
“CrPC”) and consequently allowed the said application Exh.28 and
ordered furtherinvestigation under Section 173(8) of the CrPC and
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directed the Investigating Officer to further investigate the case on the
points/issues mentioned in application Exh.28 and submit the report
within two months.
[2.1]
Special Criminal Application No.1131 of 2012 has been
preferred by the petitioners herein – original complainant (and original
accused of FIR being ICR No.257/2009) to quash and set aside the
order dated 10.01.2012 passed by the learned Sessions Judge, Surat in
Criminal Revision Application No.346 of 2011 and consequently to allow
the Criminal Miscellaneous Application No.816 of 2011 filed in the
Court of learned Chief Judicial Magistrate, Surat regarding registration
of FIR with an order for police investigation under Section 156(3) of the
CrPC.
[2.2]
Criminal Miscellaneous Application No.1746 of 2012 has
been preferred by the applicants of the said application for permitting
them to be joined as party respondents in Criminal Revision Application
No.44 of 2012.
[3.0]
The facts leading to present proceedings and which are very
necessary for determination of the present proceedings in nutshell are
as under:
[3.1]
That the applicant of Criminal Revision Application No.44
of 2012 – original complainant – Nitinbhai Mangubhai Patel lodged an
FIR with Puna Police Station, Surat against the respondent No.2 herein –
Vinubhai Haribhai Malaviya and others for the offences punishable
under Sections 420, 465, 467, 468, 471, 384, 511, 120B and 114 of the
Indian Penal Code, 1860 (hereinafter referred to as “IPC”), which was
numbered as C.R. No.I257 of 2009. That the said FIR was lodged with
the Puna Police Station, Surat on 22.12.2009. That after the
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investigation was concluded, the IO submitted the chargesheet against
all the accused persons in the Court of learned Chief Judicial Magistrate,
Surat on 22.04.2010 for the offences under Sections 420, 465, 467, 468,
471, 384, 511 and 120B and 114 of the IPC. That thereafter the case
has been registered as Criminal Case No.9781 of 2010. That the
respondent No.2 herein – original accused No.1 – Vinubhai Haribhai
Malaviya submitted application Exh.28 for furtherinvestigation under
Section 173(8) of the CrPC and simultaneously also submitted the
application Exh.29 requesting to discharge him for the offences for
which he has been chargesheeted. The said applications were
submitted on 10.06.2011, i.e. after a period of 14 months from
submitting the chargesheeting against them. It appears that thereafter
on 14.06.2011, other accused persons – original accused Nos.2 to 6
submitted other applications at Exh.31 for furtherinvestigation under
Section 173(8) of the CrPC as well as application Exh.32 to discharge
them for the offences for which they are chargesheeted. That the
learned Magistrate/trial Court dismissed both the applications Exh.28
and 31 (which were submitted for furtherinvestigation under Section
173(8) of the CrPC by accused No.1 as well as accused No.2 to 6
respectively) by common order dated 24.08.2011. By common order
dated 21.10.2011, the learned trial Court/Magistrate also rejected the
application Exhs.29 and 32 rejecting the discharge applications
submitted by the original accused No.1 and original accused Nos.2 to 6
respectively. It appears that all the accused persons jointly preferred
Criminal Revision Application No.428 of 2011 challenging the common
order passed by the learned trial Court/Magistrate below applications
Exhs.29 and 32 (discharge applications). That the learned Revisional
Court – learned 2nd Additional Sessions Judge, Surat by order dated
06.01.2012 dismissed the said Revision Application confirming the order
passed by the learned trial Court/Magistrate dated 21.10.2011 rejecting
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the discharge applications.
[3.2]
That in the meantime and when the applications submitted
by the original accused for furtherinvestigation under Section 173(8) of
the CrPC at Exhs.28 and 31 were pending, the original accused No.1 for
himself and power of attorney holder of other accused filed a private
complaint in the Court of learned 2nd Additional Chief Judicial
Magistrate, Surat being Criminal Miscellaneous Application No.816 of
2011 against the original complainant Nitin Mangubhai Patel and others
for the offences punishable under Sections 406, 420, 465, 467, 468,
471, 34, 114 and 120B of the IPC with allegations which are as such
can be said to be his defences in the Criminal Case No.9781 of 2010 in
which they have been chargesheeted and also making the very
allegations which were made in his discharge applications Exh.28 and
29. That the said complaint came to be filed on 26.07.2011 which was
filed for an order under Section 154(1) of the CrPC and in the
alternative to pass an order for investigation under Section 156(3) of the
CrPC. That by order dated 09.09.2011, the learned Chief Judicial
Magistrate rejected the said application – Criminal Miscellaneous
Application No.816 of 2011.
[3.3]
That being aggrieved and dissatisfied with the order passed
by the learned trial Court/learned Chief Judicial Magistrate dated
24.08.2011 below Exh.28, respondent No.2 herein – original accused
No.1 Vinubhai Haribhai Malaviya preferred Criminal Revision
Application No.376 of 2011. At this stage, it is to be noted that original
accused Nos.2 to 6 did not challenge the order passed by CJM rejecting
their application Exh.31.
[3.4]
Simultaneously, the original complainant – applicant of
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Criminal Miscellaneous Application No.816 of 2011 also preferred
Criminal Revision Application No.346 of 2011 challenging the order
passed by the learned Additional Chief Judicial Magistrate dated
09.09.2011 in Criminal Miscellaneous Application No.816 of 2011.
[3.5]
That both the aforesaid Revision Applications came to be
heard by the learned 2nd Additional Sessions Judge, Surat jointly and by
impugned common judgment and order dated 10.01.2012, the learned
Revisional Court has allowed the Criminal Revision Application No.376
of 2011 preferred by the respondent No.2 herein – original accused No.1
by quashing and setting aside the order passed by the learned Additional
Chief Judicial Magistrate dated 24.08.2011 below application Exh.28
and consequently allowing the said application and ordering further
investigation under Section 173(8) of the CrPC directing the IO to
further investigate the case considering the observations made in the
impugned order and to submit the report within 60 days before the
competent Court having jurisdiction. In view of the order passed in
Criminal Revision Application No.376 of 2011 ordering further
investigation under Section 173(8) of the CrPC on the issues/allegations
made in the application Exh.28 which are also alleged in the Criminal
Miscellaneous Application No.816 of 2011, learned Revisional Court
dismissed the Criminal Revision Application No.346 of 2011 by
observing that no further separate order is required to be passed and
consequently by impugned order the learned Revisional Court has
dismissed the Criminal Revision Application No.346 of 2011 preferred
by the respondent No.2 herein and others – original accused – original
complainants of Criminal Miscellaneous Application No.816 of 2011.
[3.6]
That thereafter original accused No.1 – Vinubhai Malaviya
preferred Special Criminal Application No.727 of 2012 before this Court
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challenging the earlier order passed by the learned Revisional Court –
learned 2nd Additional Sessions Judge, Surat in Criminal Revision
Application No.428 of 2011 by which the learned Revisional Court
dismissed the said Revision Application confirming the order passed by
the learned CJM dated 21.10.2011 passed below Exhs.29 and 32
rejecting the discharge applications submitted by the original accused.
That the said Special Criminal Application No.727 of 2011 came to be
withdrawn by the original accused on 13.06.2012 with a liberty to file a
fresh application for discharge after investigation is concluded (the
purpose and circumstances under which the original accused withdrew
the said Special Criminal Application No.727 of 2012 on 13.06.2012 are
stated herein above, which shall be discussed hereinafter).
[3.7]
Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 10.01.2012 passed by the learned 2nd
Additional Sessions Judge in Criminal Revision Application No.376 of
2011 ordering furtherinvestigation under Section 173(8) of the CrPC at
the instance of the original accused, the applicant herein – original
complainant has preferred the present Criminal Revision Application
No.44 of 2012 before this Court on 24.01.2012 and the said Revision
Application came up for hearing on 22.02.2012 and at that time learned
Public Prosecutor appeared on behalf of respondent No.1 State and Shri
P.M. Thakkar, learned Counsel appeared on behalf of respondent No.2
herein – original accused No.1 and the learned Single Judge passed an
order directing to issue notice in the said Revision Application making it
returnable on 29.02.2012. That thereafter again the Revision
Application was heard by the learned Single Judge on 13.04.2012 and
the learned Single Judge directed to call for the Record & Proceedings of
the Criminal Case No.9781 of 2010 and the matter was adjourned to
04.05.2012. That thereafter the matter was heard and adjourned from
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time to time. It appears that in the meantime and after the impugned
judgment and order was passed by the learned Revisional Court on
10.01.2012, as the prosecution/State intended to challenge the
impugned judgment and order passed by the learned Revisional Court
ordering furtherinvestigation under Section 173(8) of the CrPC, the
learned Special Public Prosecutor appearing on behalf of the State in the
said Criminal Revision Application submitted the application before
learned Revisional Court to stay the further implementation and
operation of the judgment and order dated 10.01.2012 by submitting
that the State proposes to approach the High Court against the said
judgment and order, however, unfortunately, the learned 2nd Additional
Sessions Judge by order dated 21.01.2012 rejected the said application.
[3.8]
It appears that thereafter pursuant to the impugned
judgment and order passed by the learned Revisional Court dated
10.01.2012 in Criminal Revision Application No.376 of 2011 ordering
furtherinvestigation under Section 173(8) of the CrPC, the
Commissioner of Police, Surat passed an order dated 16.01.2012
handing over furtherinvestigation to Police Inspector, Khatodara Police
Station, Surat and he started furtherinvestigation on 25.01.2012. It is
required to be noted at this stage that as such the learned Special PP
who appeared in the aforesaid Criminal Revision Application already
proposed to prefer Revision Application before this Court against the
impugned judgment and order passed by the learned Revisional Court
ordering furtherinvestigation, by his opinion dated 18/19.01.2012 sent
to the Secretary, Legal Department. Thereafter, the furtherinvestigation
was handed over to PI Shri K.M. Gohil, Puna Police Station, Surat and it
seems that he initiated furtherinvestigation on 25.01.2012. That PI Shri
Gohil who was the IO at the relevant time and who was entrusted with
the furtherinvestigation pursuant to the impugned judgment and order
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passed by the learned Revisional Court, came to be transferred and on
his place, present IO Shri R.A. Munshi was appointed and it appears that
from that day the mischief started in the matter. It appears that further
investigation was handed over to the present IO Shri Munshi on
06.03.2012 (even as per his own report) and within a period of three
days he submitted the interim furtherinvestigation report before the
learned 2nd Additional Sessions Judge, Surat City on 09.03.2012 (though
there is no such provision under the CrPC to submit interim further
investigation report and that too before the Court before whom no
proceedings were pending) and from the said interim further
investigation report, virtually he submitted the report giving acquittal to
the accused persons who were already chargesheeted in Criminal Case
No.9781 of 2010 and also requested to grant further 30 days' time. It is
required to be noted and which is not disputed that the said interim
furtherinvestigation report was submitted by the present IO Shri
Munshi straightway before the learned 2nd Additional Sessions Judge,
Surat City and not even through the concerned Special PP. It appears
that deliberately the said alleged interim furtherinvestigation report
was not submitted through the Special PP as infact according to the
report sent by the learned Special PP, he had already proposed to
challenge the judgment and order passed by the learned Revisional
Court ordering furtherinvestigation and therefore, if he would have
submitted the interim furtherinvestigation report dated 09.03.2012
through learned Special PP, he might not have permitted him to produce
the same on record and therefore, deliberately the present IO Shri
Munshi straightway submitted the interim furtherinvestigation report
dated 09.03.2012 before the learned 2nd Additional Sessions Judge,
Surat City. At this stage it is required to be noted that as such no
proceedings were pending before the learned Additional Sessions Judge,
Surat City in which such a report could have been produced. It is also
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required to be noted at this stage that even as per the earlier judgment
and order passed by the learned 2nd Additional Sessions Judge, Surat
City in Criminal Revision Application No.376 of 2011 ordering for
furtherinvestigation, the IO was required to submit the further
investigation report before the concerned Court which would be the
concerned Magistrate having jurisdiction. Therefore, in any case such
an interim furtherinvestigation report was not required to be produced
by the IO before the learned 2nd Additional Sessions Judge, Surat City,
still he placed it before the learned 2nd Additional Sessions Judge, Surat
City and that too directly and even which was not even inwarded. The
matter does not end here. Again the IO Shri Munshi submitted an
another interim furtherinvestigation report dated 10.04.2012
straightway before the learned 2nd Additional Sessions Judge, Surat City
again virtually acquitting the accused persons in Criminal Case No.9781
of 2010 and even the said report dated 10.04.2012 was straightway
submitted before the learned 2nd Additional Sessions Judge, Surat City
directly and not through the concerned PP/Special PP and that too when
no proceedings before the learned 2nd Additional Sessions Judge, Surat
City were pending. It is required to be noted that in the report dated
10.04.2012, the IO did mention about the pendency of Criminal
Revision Application No.44 of 2012 before this Court and still he
proceeded further with furtherinvestigation with a view to see that the
present Criminal Revision Application No.44 of 2012 becomes
infructuous. It appears that by the said report, the IO also prayed for
further 30 days time to complete the furtherinvestigation (the contents
and findings of the IO by which the present IO has virtually acquitted
the accused persons in Criminal Case No.9781 of 2010 will be discussed
herein after).
[3.9]
That thereafter it appears that the respondent No.2 herein –
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original accused No.1 and others got the copies of the reports dated
09.03.2012 and 10.04.2012 submitted by the present IO Shri Munshi by
which virtually the IO has acquitted them in Criminal Case No.9781 of
2010 and for the offences for which they are chargesheeted and
therefore, with a malafide intention the original accused withdrew
Special Criminal Application No.727 of 2012 on 13.06.2012 with a
liberty to file a fresh application for discharge after investigation is
concluded and it seems that without even disclosing before the learned
Single Judge with respect to the two reports dated 09.03.2012 and
10.04.2012 as well as the pendency of the present Criminal Revision
Application No.44 of 2012 and the learned Single Judge permitted them
to withdraw the said Special Criminal Application which was preferred
against the order dated 06.01.2012 passed by the learned 2nd Additional
Sessions Judge, Surat in Criminal Revision Application No.428 of 2011
which was submitted against the order passed by the learned CJM / trial
Court rejecting the discharge application Exhs.29 and 32.
[3.10]
Under the aforesaid facts and circumstances, the present
Criminal Revision Application No.44 of 2012, which has been preferred
against the impugned judgment and order dated 10.01.2012 passed by
the learned 2nd Additional Sessions Judge, Surat in Criminal Revision
Application No.376 of 2011, is required to be considered.
[4.0]
Shri S.V. Raju, learned Senior Advocate has appeared with
Shri A.B. Munshi, learned advocate has appeared on behalf of the
applicant – original complainant and Shri R.J. Goswami, learned
advocate has appeared on behalf of respondent No.2 – original accused
No.1 in Criminal Revision Application No.44 of 2012 and Shri Maulik
Nanavati, learned Special Public Prosecutor has appeared on behalf of
the State as well as the Investigating Officer.
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[4.1]
At the outset it is required to be noted that Shri Maulik
Nanavati, learned Special PP appearing on behalf of the State and the
prosecution has stated at the Bar that the State and the prosecution
disown the interim furtherinvestigation report dated 09.03.2012 and
10.04.2012 submitted by the present IO Shri Munshi and has submitted
that such reports could not have been filed / submitted by the present IO
and even such reports were not permissible at all that too before the
learned Sessions Court before whom no proceedings were pending and
he has as such submitted that in view of the above both these reports are
to be treated as if they are not filed at all and /or they are not in
existence at all. He has also stated at the Bar and submitted that as such
the aforesaid reports dated 09.03.2012 and 10.04.2012 do not reflect
the case on behalf of the State and/or the prosecution and as such, such
reports ought not have and could not have been filed by the present IO.
He has also stated at the Bar that he does not know how the reports
dated 09.03.2012 and 10.04.2012 came in the custody of the original
accused persons.
[4.2]
Shri S.V. Raju, learned Counsel appearing on behalf of the
original complainant has challenged the impugned judgment and order
passed by the learned Revisional Court in Criminal Revision Application
No.376 of 2011 by which the learned Revisional Court ordered further
investigation under Section 173(8) of the CrPC and that too on the
application submitted by the accused making following legal
submissions.
1.
That the Revision Application before the learned Revisional
Court against the order passed by the learned Magistrate
rejecting the applications Exh.28 and 31 for further
investigation under Section 173(8) of the CrPC was not
maintainable as the order rejecting the said application was an
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interlocutory order.
2.
That the learned Magistrate has already taken the cognizance
and accepted the chargesheet and given the criminal case
number by issuing process against the accused persons,
thereafter, the learned Magistrate has no authority to pass an
order for furtherinvestigation under Section 173(8) of the
CrPC either at the instance of the complainant or accused.
3.
That in absence of any specific provision under the CrPC, the
learned Magistrate has no jurisdiction to pass an order for
furtherinvestigation under Section 173(8) of the CrPC and
that too at the instance and/or on the application submitted by
the accused persons.
4.
Assuming that the learned Magistrate has such jurisdiction, in
that case also, no order could have been passed for further
investigation under Section 173(8) of the CrPC that too on an
application by the accused persons, without giving an
opportunity to be heard to the complainant as it will prejudice
the complainant.
5.
That even otherwise on the grounds which are as such the
defences of the accused, no order for furtherinvestigation
under Section 173(8) of the CrPC can be passed at the instance
of the accused.
6.
Even on merits also, in the facts and circumstances of the case,
the learned Revisional Court has erred in ordering further
investigation under Section 173(8) of the CrPC.
In support of his above submission that the Revision Application
against the order passed by the learned Magistrate under Section 173(8)
of the CrPC, before the learned Sessions Cout was not maintainable in
view of the bar contained in Section 397(2) of the CrPC and in as much
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as the order impugned before the learned Sessions Judge was an
interlocutory order, Shri Raju, learned Counsel appearing on behalf of
the original complainant has heavily relied upon the decision of the
Hon'ble Supreme Court in the case of K.K. Patel and Anr. vs. State of
Gujarat and Anr. reported in (2000)6 SCC 195. It is submitted that in
view of the aforesaid decision of the Hon'ble Supreme Court, while
considering the order as an interlocutory or not, the test to be applied is
that of culmination of the proceedings finally. It is submitted that if the
objection raised by party is such that it would result in culmination of
the proceedings then the order would not be an interlocutory order.
Therefore, it is submitted that applying the aforesaid test to the facts of
the present case, any order under Section 173(8) of the CrPC would
never culminate the proceedings finally, therefore, it is an interlocutory
order and therefore, against the order passed under Section 173(8) of
the CrPC, the Revision Application would not lie.
[4.3]
In support of the contention on behalf of the applicant –
original complainant that neither the learned Magistrate nor the learned
Sessions Court had no jurisdiction to pass an order for further
investigation under Section 173(8) of the CrPC, after learned Magistrate
had taken the cognizance, Shri Raju, learned Counsel has relied upon
the decision of the Hon'ble Supreme Court in the case of Randhir Singh
Rana vs. State (Delhi Administration) reported in (1997)1 SCC 361; as
well as decision in the case of Reeta Nag vs. State of West Bengal and
Ors. reported in (2009)9 SCC 129 as well as the decision of the learned
Single Judge of this Court in the case of Miteshkumar Rameshbhai
Patel & Anr. vs. State of Gujarat & Anr. reported in 2006(3) GLR 1935.
It is submitted by Shri Raju, learned Counsel that in the present case, the
chargesheet was filed against the accused persons on 22.04.2010 which
was accepted by the learned Magistrate and even the summonses were
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issued against the accused persons on 23.04.2010 much before the date
of application under Section 173(8) of the CrPC. Therefore, it is
submitted that the learned Revisional Court has materially erred in
ordering furtherinvestigation under Section 173(8) of the CrPC and that
too at the instance of the accused.
[4.4]
It is further submitted that not only that even on the ate of
application under Section 173(8) of the CrPC, not only had the accused
appeared before the learned Magistrate but on the very day they also
moved an application for discharge. After acceptance of the charge
sheet, the case was also numbered as Criminal Case No.9781 of 2010.
Therefore, it is submitted that all the aforesaid facts show that the
learned Magistrate had already taken cognizance of the matter.
Therefore, it is submitted that having once taken cognizance by the
learned Magistrate, the learned Sessions Court could not have made the
order under Section 173(8) of the CrPC. It is submitted that it is only
the police or the IO who can take and/or pray for furtherinvestigation
as provided under Section 173(8) of the CrPC.
[4.5]
It is further submitted by Shri Raju, learned Counsel that as
such in absence of any specific provision under the CrPC, neither the
Magistrate nor the learned Sessions Court has any jurisdiction to pass an
order for furtherinvestigation under Section 173(8) of the CrPC. It is
submitted that unlike the High Court, the Magistrate does not possess
any inherent powers. It is submitted that the learned Magistrate has to
act within the four corners of the CrPC therefore, it is submitted that
even no power is conferred on the learned Magistrate under any of the
provisions of the CrPC, the learned Magistrate has no authority or
jurisdiction to exercise such powers. It is submitted that in the present
case, the CrPC does not confer any right on a Magistrate to pass an order
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for furtherinvestigation under Section 173(8) of the CrPC. It is
submitted that under Section 173(8) of the CrPC, such a right is
exclusively with the investigating agency and therefore, in absence of
specific provision, the learned Magistrate has no power to pass order for
furtherinvestigation. In support of his above submissions, learned
Counsel appearing on behalf of the applicant – original complainant has
heavily relied upon the decision of the Hon'ble Supreme Court in the
case of Subramanium Sethuraman vs. State of Maharashtra and Anr.
reported in (2004) 13 SCC 324 as well as in the case of Adalat Prasad
vs. Rooplal Jindal and Ors. reported in (2004)7 SCC 338.
[4.6]
It is further submitted by Shri Raju, learned Counsel that
even otherwise the impugned judgment and order passed by the learned
Revisional Court which has been passed without giving an opportunity
to the original complainant deserves to be quashed and set aside. It is
submitted that in view of the provisions of Section 401(2) read with
Section 399 of the CrPC, the learned Sessions Court ought to have heard
the original complainant before deciding the Revision Application in
favour of the accused. It is submitted that as such the original
complainant was heard before the learned Magistrate while deciding the
applications Exh.28 and 31. It is submitted that therefore, impugned
judgment and order passed by the learned Revisional Court without
hearing the complainant i.e. the applicant in Criminal Revision
Application No.44 of 2012 is not only in violation of the provisions of
Section 401 of the CrPC but is also contrary to the decision of the
Hon'ble Supreme Court in the case of Raghu Raj Singh Rousha vs.
Shivam Sundaram Promoters Private Limited and Anr. reported in
(2009)2 SCC 363. It is submitted that if the opportunity would have
been given to the applicant – original complainant, he would have
pointed out that the Revision Application was not maintainable since the
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order was an interlocutory order etc. and that even on merits also, the
learned Sessions Judge should not have passed the impugned order.
[4.7]
It is further submitted that even otherwise on merits also,
the learned Revisional Court has materially erred in ordering further
investigation under Section 173(8) of the CrPC that too at the instance
of the accused who was already chargesheeted and against whom the
summons was issued by the learned Magistrate. It is submitted that as
such the application under Section 173(8) of the CrPC has been made
for oblique purposes and is not germane or relevant for the matter in
controversy before the learned Magistrate. It is submitted that for the
defence of the accused, the order for furtherinvestigation under Section
173(8) of the CrPC cannot be passed. It is submitted that in the present
case apart from the fact that the ground on which the further
investigation was sought were not relevant with respect to the Criminal
Case No.9781 of 2010, at the most the same can be said to be his
defence. It is submitted that even on merits also, the learned Revisional
Court has erred in ordering furtherinvestigation under Section 173(8)
of the CrPC. It is submitted that therefore the Additional Sessions Judge
has not properly appreciated the purpose for which the further
investigation was sought by the accused and has without appreciating
the oblique purposes for furtherinvestigation, the learned Revisional
Court has passed the impugned order for furtherinvestigation under
Section 173(8) of the CrPC which deserves to be quashed and set aside.
[4.8]
It is further submitted by Shri Raju, learned Counsel that in
the present case even the subsequent IO Shri Munshi has acted
malafidely and in collusion with the accused persons. It is submitted that
the present IO took over the charge of the investigation on 06.03.2012
and within a period of three days only submitted the interim further
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investigation report dated 09.03.2012 and that too before the learned
Sessions Court before whom no proceedings were pending and that too
directly and not even through the concerned Special Public Prosecutor
and virtually gave the findings in favour of the accused persons and
virtually acquitted the accused persons. It is further submitted that
despite the fact that the present IO was aware of the pendency of the
present Criminal Revision Application No.44 of 2012 and infact he
appeared before this Court also, he proceeded further with the further
investigation and submitted a further interim furtherinvestigation
report dated 10.04.2012 giving findings in favour of the accused persons
and acquitting the accused persons in Criminal Case No.9781 of 2010.
It is submitted that as such the discharge application submitted by the
accused persons to discharge them for the offences for which they are
chargesheeted came to be rejected not only by the learned Magistrate
but even by the Revisional Court and Special Criminal Application
against the said orders was pending before this Court and by submitting
the aforesaid two reports, the present IO has virtually nullified the
orders passed by the learned Magistrate as well as the learned Sessions
Court rejecting the discharge applications. It is submitted that even the
accused persons even got the copies of those reports and considering the
same, purposefully and deliberately withdrew the Special Criminal
Application No.727 of 2012 with a liberty to file fresh discharge
application before the learned Magistrate. Thus, the accused persons
wanted to get the undue advantage and benefit of the aforesaid two
reports. It is submitted that as such the present IO deliberately and
purposefully submitted the aforesaid two reports dated 09.03.2012 and
10.04.2012 before the learned Sessions Court directly and though before
the learned Sessions Court as such no proceedings were pending. It is
submitted that even the present IO submitted the aforesaid two reports
directly before the learned 2nd Additional Sessions Judge, Surat City and
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not even through the learned Special Public Prosecutor and even neither
any application for extension nor even such reports were inwarded in
the Court of learned 2nd Additional Sessions Judge, Surat before whom
the said reports were submitted. It is submitted that the present IO
deliberately did not submit the aforesaid reports through the learned
Special Public Prosecutor as infact the learned Special PP who appeared
in the Criminal Revision Application before the Revisional Court, had
already submitted the report/proposal to challenge the order before this
Court and therefore, even keeping him in dark, the reports have been
submitted. It is submitted that even such a practice before the learned
Sessions Court to submit the reports directly in the Court and without
even giving the inward number and/or that where no proceedings were
pending before him is also questionable.
[4.9]
Taking note of the statement made by Shri Maulik
Nanavati, learned Special PP appearing on behalf of the State and
prosecution that the State and the prosecution disowns the aforesaid
two reports and they are to be treated as if they are not in existence,
Shri Raju, learned Counsel has submitted that as such the present IO has
already done the damage to the case of the prosecution and the
complainant. It is submitted that still when the said reports are
submitted pursuant to the impugned judgment and order passed by the
learned Revisional Court – learned Additional Sessions Judge, Surat in
Criminal Revision Application No.376 of 2011 and when it is requested
to quash and set aside the said judgment and order and once it is
accepted, in that case, whatever action is taken pursuant to the said
order which is to be quashed and set aside, all subsequent actions are
also to be quashed and set aside.
Making above submissions and relying upon above
decisions, it is requested to allow the present Criminal Revision
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Application No.44 of 2012 and quash and set aside the order passed by
the learned 2nd Additional Sessions Judge, Surat dated 10.01.2012 in
Criminal Revision Application No.376 of 2011 by which the learned
Revisional Court passed an order for furtherinvestigation under Section
173(8) of the CrPC.
[5.0]
Shri Maulik Nanavati, learned Special Public Prosecutor has
appeared on behalf of the State and the prosecution. Her has fully
supported the submissions made by Shri Raju, learned Counsel
appearing on behalf of the applicant – original complainant. He has
stated at the Bar that he adopts all the submissions made by Shri Raju,
learned Counsel appearing on behalf of the original complainant. It is
submitted that even according to the State and prosecution also, the
impugned judgment and order passed by the Revisional Court ordering
furtherinvestigation under Section 173(8) of the CrPC and that too at
the instance of the accused and that too after the learned Magistrate has
taken cognizance of the case, is not permissible and cannot be sustained.
It is submitted that even on merits also, the learned Revisional Court has
materially erred in ordering furtherinvestigation under Section 173(8)
of the CrPC as the issues for which the learned Sessions Court has
passed an order for furtherinvestigation are not at all relevant for the
offences alleged to have been committed by the accused persons and in
any case they can be said to be the defence of the accused. It is
submitted that for the defences of the accused there cannot be any order
for furtherinvestigation under Section 173(8) of the CrPC. It is
submitted that even under Section 173(8) of the CrPC, the Magistrate
has no jurisdiction and/or authority to pass an order for further
investigation under Section 173(8) of the CrPC, the powers which are
vested only with the investigating agency.
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[5.1]
Now, so far as the two interim furtherinvestigation reports
submitted by the present IO Shri Munshi, as stated herein above, Shri
Nanavati, learned Special PP has stated at the Bar that the State and the
prosecution disowns the aforesaid two reports submitted by the present
IO. It is submitted that as such the present IO was not justified in
submitting the aforesaid two interim furtherinvestigation reports and
that too before the learned Sessions Court before whom no proceedings
were pending and that too directly and even not through the Public
Prosecutor/Special Public Prosecutor. He has also stated at the Bar that
even the State and the prosecution is of the opinion that said reports are
submitted in haste may be with malafide intention and it is against the
interest of the prosecution and the complainant. Therefore, it is
submitted that the aforesaid two reports dated 09.03.2012 and
10.04.2012 to be ignored for all purposes as if they are not in existence
at all. Shri Nanavati, learned Special PP appearing on behalf of the
State and the prosecution has fairly conceded that by the aforesaid two
reports though were not permissible at all, the present IO has virtually
tried to acquit the accused persons for the offences for which they are
chargesheeted in Criminal Case No.9781 of 2010. At the end Shri
Nanavati, learned Special PP has requested to pardon the present IO by
submitting that in haste the present IO might have submitted the
reports. However, he has ultimately left it to the Court with respect to
the conduct on the part of the present IO.
[6.0]
Criminal Revision Application No.44/2012 has been
opposed by Shri R.J. Goswami, learned advocate appearing on behalf of
the respondent No.2 herein – original revisionist – original accused No.1
as well as Shri Kapadia, learned advocate appearing on behalf of original
accused Nos.2 to 6. Shri Goswami, learned advocate appearing on
behalf of the original accused No.1 has vehemently submitted that in the
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facts and circumstances of the case, the learned Sessions Court has not
committed any error and/or illegality in allowing the revision
application preferred by the original accused No.1 and granting the
relief for furtherinvestigation. He has vehemently submitted that as
such the application for further furtherinvestigation was based on the
papers collected during investigation in the form of the chargesheet and
therefore, it cannot be said that the prayer for furtherinvestigation by
the accused persons was made in support of their defence.
It is further submitted by Shri Goswami, learned advocate
appearing on behalf of the respondent No.2 – original accused No.1 that
as such the present revision application by the complainant is not
maintainable against the grant of order of furtherinvestigation as it does
not finally determine his rights, whereas refusal to order further
investigation at the instance of the accused would close the doors of
furtherinvestigation and would finally determine the rights of the
accused.
[6.1]
Now, so far as the contention on behalf of the petitioner
that under section 173(8) of the CrPC, the learned Magistrate has no
power to order for furtherinvestigation is concerned, it is submitted by
the learned advocates appearing for the respondents that as such the
learned Magistrate may not have power to order furtherinvestigation on
his own, but the learned Magistrate has the power to order further
investigation on the application of any party inclusive of the accused.
Therefore, it is submitted that as such no illegality has been committed
by the learned revisional court in ordering furtherinvestigation on the
application of the accused.
It is further submitted that as such no rights of the
complainant are decided by the order of furtherinvestigation. It is
submitted that CrPC does not provide hearing of the complainant before
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ordering furtherinvestigation. It is further submitted that as such
furtherinvestigation is not to advance any defence of the accused but
the facts on record and the facts which may be investigated would falsify
the basis of the FIR and the chargesheet.
It is further submitted by the learned advocates appearing
for the original accused that as it was found by the accused that the
earlier investigation conducted by the IO was not fair and/or impartial
and he did not investigate in detail and to find out the truth and
therefore, it necessitated the accused to submit the applications for
furtherinvestigation which is rightly granted by the revisional court.
[6.2]
Shri Goswami, learned advocate appearing for the original
accused No.1, who is also the power of attorney holder of original
accused Nos.2 to 6 has heavily relied upon the decision of the learned
single Judge in the case of Valiben W/o.Vitthalbhai Narsinhbhai and
Ors. reported in 2006(2) GLH 354 and has submitted that as observed
by the learned single Judge in the said decision, valuable right is
available to the accused to seek furtherinvestigation. It is submitted that
application for furtherinvestigation by the accused is permissible even
after filing the report and also after taking cognizance. It is submitted
that a valuable right is also available to the accused to seek aid of
provisions of section 173(8) of the CrPC.
Relying upon the decision of the Hon’ble Supreme Court in
the case of State Inspector of Police, Vishakhapatnam vs. Surya
Sankaram Karri reported in (2006)7 SCC 172, it is submitted that as
observed by the Hon’ble Supreme Court in the said decision,
investigation is to be carried out by the investigating agency not only
from the stand of the prosecution, but also the defence.
Relying upon the decision of the learned single Judge in the
case of Chandan Panalal Jaiswal vs. State of Gujarat reported in
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2005(3) GCD 2406 (Guj), it is submitted that in the said case the
learned single Judge entertained the petition at the instance of the
accused and allowed the same with direction for furtherinvestigation.
Shri Goswami, learned advocate appearing on behalf of the
original accused No.1 has submitted that neither investigation can shut
its eyes and refuse to examine the case set up by the accused which lead
to exonerate the complicity of accused in commission of crime nor the
court would be justified in not taking into consideration all the possible
defence or circumstances, emerging from the material on record before
it. It is submitted that ignore the same and confine itself to inquire in
such direction for proving that the accused is guilty of the offence
alleged against him. It is submitted that the obligation or the duty of the
investigation is not to make out a case against the persons accused of
offence but the obligation is to find out the truth. In support of his
above submissions, he has relied upon the decision of this Court in the
case of State of Gujarat vs. Deepak Jaswantlal Sheth reported in
1998(3) GLR 2240.
Relying upon the decision of the learned single Judge in the
case of Sarlaben Virsing Bamaniya and Anr. vs. State of Gujarat &
Anr. reported in 1989(1) GLH 148, it is submitted by Shri Goswami,
learned advocate appearing on behalf of the original accused No.1 that
even the sessions court can order furtherinvestigation. Now, with
respect to the powers of the High Court to interfere with the direction of
the Magistrate for furtherinvestigation, Shri R.J. Goswami, learned
advocate appearing for the original accused No.1 has heavily relied upon
the decision of the Hon’ble Supreme Court in the case of Manoj Narain
Agrawal vs. Shashi Agrawal and Ors. reported in (2009)6 SCC 385.
Shri R.J. Goswami, learned advocate appearing for the original accused
No.1 has also relied upon the decision of the Hon’ble Supreme Court in
the case of Babubhai vs. State of Gujarat & Ors. reported in 2011(1)
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GLR 1 (SC) and submitted that as held by the Hon’ble Supreme Court in
the said decision, if the investigation is found to have been done in a
manner to favour one party, furtherinvestigation can be ordered.
Relying upon the decision of the learned single Judge in the
case of Mavjibhai Karsanbhai Patel & Anr. vs. State of Gujarat
reported in 2003(4) GLR 3371, it is further submitted that there is no
prohibition of ordering furtherinvestigation after taking the cognizance.
Shri Goswami, learned advocate appearing for the original
accused No.1 has then relied upon the decision of the Hon’ble Supreme
Court in the case of Hasanbhai Valibhai Qureshi vs. State of Gujarat &
Ors. reported in (2004)5 SCC 347 in support of his submission that
when fresh facts [the lapses in earlier investigation in the present case]
come to light, the police should inform the court and seek permission to
make furtherinvestigation.
Learned advocate appearing on behalf of the original
accused have vehemently submitted that against the impugned order
passed by the learned revisional court ordering furtherinvestigation
which is interlocutory order, the revision application would not be
maintainable. It is submitted that even if it is assumed that the revision
application would be maintainable, the scope is limited to the legality of
the order and it is not open for the High Court to go into the merits of
the case. In support of his above submissions, he has relied upon the
decision of the Hon’ble Supreme Court in the case of Madhu Limaye vs.
The State of Maharashtra reported in (1977)4 SCC 351; Bhaskar
Industries Ltd. vs. Bhiwani Denim & Apparels Ltd. and Ors. reported
in (2001)7 SCC 401 and in the case of State represented by Inspector
of Police and Ors. vs. N.M.T. Joy Immaculate reported in (2004)5 SCC
729.
[7.1]
Shri Kapadia, learned advocate appearing on behalf of the
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petitioners of Special Criminal Application No.1131/2012 has requested
to allow the Special Criminal Application No.1131/2012 and to quash
and set aside the order dated 10.01.2012 passed by the learned CJM,
Surat in Criminal Revision Application No.346/2011 and consequently
to allow the Criminal Miscellaneous Application No.816/2011 regarding
registration of FIR with an additional order for furtherinvestigation
under section 156(3) of the CrPC. It is submitted that as such on
allowing the revision application and ordering furtherinvestigation, as
such the learned revisional court has not considered the Criminal
Revision Application No.346/2011 on merits.
Making above submissions it is requested to allow the
Special Criminal Application No.1131/2012.
[7.0]
Heard learned advocates appearing for the respective
parties at length and perused and considered in detail the order passed
by the learned Magistrate passed below Exhs.28 preferred by the
original accused No.1 which was submitted for furtherinvestigation as
well as the impugned judgment and order passed by the learned 2nd
Additional Sessions Judge, Surat in Criminal Revision Application
No.376/2011 and Criminal Revision Application No.346/2011 passed by
the learned Chief Judicial Magistrate, Surat and also perused the
Criminal Miscellaneous Application No.816/2011 filed by the accused
against the complainant as well as the two interim furtherinvestigation
reports submitted by the subsequent Investigating Officer Shri Munshi.
[7.1]
At the outset it is required to be noted that while
considering the present proceedings conduct of the accused persons and
even the conduct of the subsequent Investigating Officer, following
chronology of events / facts are required to be considered.
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Date
Facts/Events
22.12.2009 ICR No.257 of 2009 came to be filed with Puna Police
Station, Surat by Nitin Mangubhai Patel against
Vinubhai Haribhai Malaviya & Ors. alleging offences
punishable under sections 420, 465, 467, 468, 471, 384,
511, 120B and 114 of the IPC.
22.04.2010 After investigation, the chargesheet is filed in the court
of Chief Judicial Magistrate, Surat for offences under
sections 420, 465, 467, 468, 471, 384, 511, 120B and
114 of the IPC and thereafter registered as Criminal
Case No.9781 of 2010.
10.06.2011 Applications Exh.28 [for furtherinvestigation under
section 173(8) CrPC] and Exh.29 [for discharge]
respectively given by accused No.1 Vinubhai Malaviya
14.06.2011 Applications Exh.31 [for furtherinvestigation under
section 173(8) CrPC] and Exh.32 [for discharge]
respectively given by accused Nos.2, 3, 4, 5 and 6.
24.08.2011 The trial Court rejected both the application Exhs.28
and 31.
21.10.2011 Common order passed below application Exhs.29 and
32 rejecting discharge applications.
11.11.2011 Revision Application No.428/2011 preferred by all the
accused jointly challenging the common order passed
below application Exhs.29 and 32. It is to be noted that
the said revision application was preferred by Vinubhai
Malaviya – original accused No.1 for himself as well as,
as power of attorney holder of original accused Nos.2 to
6.
06.01.2012 Order came to be passed by 2nd Additional Sessions
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Judge, Surat below Criminal Revision Application
No.428/2011 confirming the order passed by the
learned CJM below application Exhs.29 and 32 rejecting
the discharge applications. Against that order, Special
Criminal Application No.727/2012 was preferred in the
High Court which was withdrawn with liberty to file
fresh application for discharge after investigation is
over.
26.07.2011 Criminal Miscellaneous Application No.816/2011 filed
by Vinubhai Malaviya and other accused through
Vinubhai as their power of attorney, against the original
complainant to register the FIR/for an order under
section 154(1) of the CrPC and in the alternative under
section 156(3) of the CrPC.
09.09.2011 This application was rejected by the CJM by order dated
09.09.2011
17.09.2011 Against the order dated 09.09.2011, Vinubhai Malaviya
as POA of Shantaben Maganbhai & Ors. preferred
Criminal Revision Application No.346/2011 in the Court
of Principal District & Sessions Judge, Surat challenging
the rejection of order passed below application under
section 156(3) of the CrPC.
Against the order of refusal of furtherinvestigation
under section 173(8) of the CrPC, Vinubhai Malaviya
preferred Criminal Revision Application No.376/2011
before the Court of Principal District & Sessions Judge,
Surat.
10.01.2012 The Sessions Judge by order dated 10.01.2012 decided
both the applications i.e. Revision Application
Nos.346/2011 and 376/2011 by a common order and
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allowed the Revision Application No.376/2011 [for
furtherinvestigation] and rejected the Revision
Application No.346/2011 [154 & 156(3) CrPC]
10.03.2012 That after an order passed by the learned Sessions Court
ordering furtherinvestigation and despite the fact that
the learned Special PP sent the proposal for preferring
revision application against the order passed by the
learned Sessions Court permitting furtherinvestigation
and allowed Criminal Revision Application
No.376/2011, the investigation was handed over to IO
Shri Munshi on 06.03.2012 and within a period of 3
days alleged to have conducted furtherinvestigation
and submitted the interim furtherinvestigation report in
the court of learned 2nd Additional Sessions Judge, Surat
[though no proceedings were pending before the
learned 2nd Additional Sessions Judge, Surat]
10.04.2012 That IO Shri Munshi submitted the interim further
investigation report [second] again in the court of
learned 2nd Additional Sessions Judge, Surat on
10.04.2012.
13.06.2012 Having received the copies of aforesaid interim further
investigation reports and having come to know that the
said reports are in their favour, the original accused
withdrew Special Criminal Application No.727/2012
before this Court, which was filed against the order
passed by the learned 2nd Additional Sessions Judge,
Surat in Criminal Revision Application No.428/2011
confirming the order passed by the learned CJM
rejecting their discharge applications, with a liberty to
move an appropriate application for discharge before
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the Magistrate, without even disclosing with respect to
pendency of Criminal Revision Application No.44/2012
and even without disclosing the subsequent interim
furtherinvestigation reports dated 09.03.2012 and
10.04.2012.
[7.2]
From the aforesaid chronological events and the facts it
appears that the application submitted by the accused for further
investigation and even the alleged furtherinvestigation carried out by
the subsequent Investigating Officer Shri Munshi, who submitted two
interim furtherinvestigation reports dated 09.03.2012 & 10.04.2012 in
the court of learned Additional Sessions Judge, Surat are nothing but
abuse of process of court and the law and the same were submitted with
malafide intention.
[7.3]
From the aforesaid it appears that the applications Exhs.28
and 31 submitted by the original accused for furtherinvestigation, were
submitted after the report/chargesheet was submitted by the IO against
the accused persons and the learned CJM took the cognizance and at the
relevant time the accused submitted the applications to discharge them.
It is also required to be noted that when the learned 2nd Additional
Sessions Judge, Surat passed the impugned order for further
investigation in Revision Application No.376/2011, not only the
discharge applications submitted by the accused – Exhs.29 and 32 were
rejected by the learned CJM, even the same were confirmed by the
learned Additional Sessions Court vide order dated 06.01.2012 passed in
Criminal Revision Application No.428/2011 against which the accused
persons were before this Court by way of Special Criminal Application
No.727/2012. It is also required to be noted at this stage that even the
grounds on which the accused submitted the applications for further
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investigation are nothing but their defences, which are required to be
considered at the time of trial. It is also required to be noted at this
stage that even the grounds on which the accused sought further
investigation by submitting the applications Exhs.28 & 31, on the very
allegations the accused submitted Criminal Miscellaneous Application
No.816/2011 against the complainant. Therefore, on one hand, the
accused submitted the applications for furtherinvestigation and on the
very grounds submitted Criminal Miscellaneous Application
No.816/2011 against the original complainant and sought the order
under section 154(1) of the CrPC and in the alternative under section
156(3) of the CrPC.
Considering section 173(8) of the CrPC, there cannot be any
furtherinvestigation at the instance of the accused on the on the
grounds which infact are their defences which are required to be
considered at the time of trial and that too after the IO has submitted
the chargesheet against the accused having found prima facie case
which requires further trial and more particularly on the very grounds
the accused submitted the discharge applications which not only came to
be rejected by the learned CJM but even the same was confirmed by the
learned Sessions Court. Section 173(8) of the CrPC permits the IO /
officer in charge of the police station for furtherinvestigation in respect
of an offence after report under subsection (2) of section 173 has been
forwarded to the Magistrate. Therefore, there cannot be a further
investigation as provided under section 173(8) of the CrPC after a report
under subsection (2) of section 173 of CrPC has been forwarded to the
Magistrate and that too on the grounds which are the defences of the
accused. The powers which are available for furtherinvestigation under
section 173(8) of the CrPC would be available only to the IO/officer in
charge of the police station. Under the circumstances and in the facts
and circumstances of the case, as such the learned CJM was right in
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rejecting the applications Exhs.28 & 31 – the applications which were
submitted by the accused for furtherinvestigation under section 173(8)
of the CrPC and consequently the learned 2nd Additional Sessions Judge,
Surat has materially erred in interfering with the orders passed by the
learned CJM below Exhs.28 & 31 and consequently ordering further
investigation.
At this stage the decision of the Hon’ble Supreme Court in the
case of State of Orissa vs. Debendra Nath Padhi reported in (2005)1
SCC 568 is required to be referred to. In the said decision the Hon’ble
Supreme Court has observed and held that at the time of framing charge
or taking cognizance the accused has no right to produce any material.
It is further observed that no provision of CrPC grants to the accused any
right to file any material or documents at the stage of framing of the
charge. It is further observed that that right is granted only at the stage
of trial. If that be so, there cannot be any furtherinvestigation at the
instance of the accused and that too after the chargesheet is filed on the
grounds which infact are their defences, which are required to be
considered at the time of trial.
[8.0]
It cannot be disputed that even the learned Magistrate does
not possess any powers and/or inherent powers for ordering further
investigation under section 173(8) of the CrPC and as stated
hereinabove, the powers for furtherinvestigation are only vested in the
officer incharge of the police station / IO only. In the present case, the
learned Revisional Court has materially erred in not appreciating the
scope of furtherinvestigation under section 173(8) of the CrPC that too
at the instance of the accused and when the chargesheet was already
filed and even the grounds which are infact the defences of the accused.
The revisional court has also not properly appreciated the fact that in
the present case, CrPC does not confer any right on the Magistrate to
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pass an order under section 173(8) of the CrPC and that right is
exclusively with the investigating agency and therefore, in absence of
specific provision, the learned Magistrate has no power to pass order for
furtherinvestigation.
[8.1]
It is also required to be noted at this stage that in the
present case chargesheet was filed against the accused persons on
22.04.2010 and the learned CJM took cognizance against the accused
and even the learned CJM issued the summonses against the accused on
23.04.2010 and after the learned CJM took cognizance and issued
summonses against the accused, the accused persons submitted the
application Exhs.28 & 31 for furtherinvestigation after a period of one
year and two months. Therefore, the question which is required to be
considered by this Court is, whether after the IO has submitted that
chargesheet against the accused persons and the learned Magistrate
has taken the cognizance and issued the summonses against the
accused, an application for furtherinvestigation that too at the
instance of the accused is permissible or not?
Considering section 173(8) of the CrPC and for the reasons stated
hereinabove, as such the aforesaid would not be permissible. In the case
of Randhir Singh Rana (Supra), the Hon’ble Supreme Court has
observed and held that a Judicial Magistrate, after taking cognizance of
an offence on the basis of the police report and after appearance of the
accused, cannot order of his own, furtherinvestigation under section
173(8) of the CrPC in the case.
In the case of Reeta Nag (Supra), the Hon’ble Supreme Court has
specifically observed and held that when no application has been made
by the investigating authorities for conducting furtherinvestigation as
permitted under section 173(8) of the CrPC, other course of action open
to the Magistrate is to take recourse to the provisions of section 319 of
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the Code at the stage of trial.
In the case of Miteshkumar Rameshbhai Patel and Anr. (Supra),
the learned single Judge of this Court had an occasion to consider the
court’s powers to direct furtherinvestigation under section 173(8) of the
CrPC and it is held that court cannot, after cognizance is taken, direct
furtherinvestigation by police. It is further held, however, the Court has
power to direct furtherinvestigation before cognizance is taken. It is
further observed that however, the powers of the police under section
173(8) of the CrPC to investigate further even after chargesheet is filed
or cognizance is taken is unfettered.
Thus, considering the aforesaid decisions of the Hon’ble Supreme
Court as well as this Court, the learned Magistrate has no jurisdiction
and/or powers to order furtherinvestigation under section 173(8) of the
CrPC, after submitting the chargesheet by the police, on his own.
Similarly, there cannot be any furtherinvestigation after the report is
submitted against the accused, at the instance of the accused and more
particularly when the learned trial Court has taken cognizance and
issued the summonses against the accused and that too on the grounds
which can be said to be the defences of the accused, which are required
to be considered at the time of trial.
[8.2]
Now, so far as the decisions relied upon by the learned
advocates appearing on behalf of the accused referred to hereinabove
and with respect to the fair investigation etc. are concerned, as such
there cannot be any dispute with respect to proposition of law laid down
in the aforesaid decisions. However, the question is with respect to
exercise of powers of furtherinvestigation under section 173(8) of the
CrPC that too after the report has been submitted by the IO against the
accused and the learned CJM has taken the cognizance and issued the
summonses against the accused. Under the circumstances, the aforesaid
34
R/CR.RA/44/2012 CAV JUDGMENT
decisions relied upon by the learned advocates appearing for the original
accused would not be of any assistance to them in the facts of the
present case and more particularly with respect to the controversy in the
present revision application.
[9.0] Now, so far as the objection raised by the learned advocate
appearing for the accused with respect to the maintainability of the
present revision application against the order passed by the learned
Sessions Court granting furtherinvestigation on the ground that the
same is an interlocutory order is concerned, the objection raised cannot
be sustained. It has been found that the order passed by the learned
Sessions Court permitting furtherinvestigation under section 173(8) of
the CrPC is wholly without jurisdiction in as much as there cannot be
furtherinvestigation after the chargesheet has been submitted and the
learned Magistrate has taken the cognizance and issued summonses
against the accused and that too at the instance of the accused and on
the grounds which are as such the defences of the accused which are
required to be considered at the time of trial. Under the circumstances,
the interference of this Court while exercising revisional jurisdiction
against the impugned judgment and order passed by the revisional court
is called for.
[9.1] Even the impugned order passed by the learned revisional court
also deserves to be quashed and set aside on the ground that the same
has been passed without giving an opportunity of being heard to the
complainant. It is the case on behalf of the complainant that against the
order rejecting the application for furtherinvestigation, revision
application before the learned Sessions Court was not maintainable and
even if maintainable, on merits the application for furtherinvestigation
was required to be dismissed. Under the circumstances, if the
35
R/CR.RA/44/2012 CAV JUDGMENT
complainant would have been joined as a party respondent to the
revision application before the learned Sessions Court, the complainant
would have raised the aforesaid objections and/or would have made the
submissions on merits. By not joining the complainant in the revision
application and by not giving an opportunity to the complainant before
the revisional court, it has caused great prejudice to the complainant. At
this stage the decision of the Hon’ble Supreme Court in the case of
Randhir Singh Rana (Supra) is required to be referred to. In the case
before the Hon’ble Supreme Court, the original complainant filed the
complaint in the court of learned Additional Chief Metropolitan
Magistrate, New Delhi at Patiala House Court under section 200 of the
CrPC against the accused and accompanied by an application under
section 156(3) of the CrPC. That the learned Magistrate refused to
direct investigation in the matter in terms of section 156(3) of the CrPC
and proceeded further under section 200 of the CrPC. Against the
aforesaid, the complainant preferred revision application before the
High Court impleading the State only as a party and High Court set
aside the order passed by the learned Metropolitan Magistrate in the
absence of the accused and directed the learned Metropolitan Magistrate
to examine the matter fresh after calling for a report from the police
authorities. Against the order passed by the High Court, the accused
approached the Hon’ble Supreme Court and the Hon’ble Supreme Court
set aside the order passed by the High Court by observing that had an
opportunity of being given to the appellant (accused), he could have
shows that no revision application was maintainable and/or even
otherwise, no case has been made out for interference with the
impugned judgment. Similar analogy can be applied to the facts of the
case on hand. In the present case, if the petitioner – complainant would
have been given an opportunity of hearing, he could have shown that no
revision application was maintainable and/or even otherwise, no case
36
R/CR.RA/44/2012 CAV JUDGMENT
has been made out for interference with the order passed by the learned
Chief Judicial Magistrate rejecting the applications for further
investigation.
[9.2] In the present case even the conduct on the part of the subsequent
IO and even the accused deserves serious consideration.
In the present case, admittedly, the subsequent IO Shri
Munshi took over the charge of the investigation / furtherinvestigation
on 06.03.2012 and within a period of 3 days only he has alleged to have
conducted the furtherinvestigation (pursuant to the impugned order
passed by the learned Additional Sessions Judge, Surat) and submitted
the interim furtherinvestigation report on 09.03.2012. It is required to
be noted that deliberately he submitted the interim furtherinvestigation
report dated 09.03.2012 in the court of learned 2nd Additional Sessions
Judge, Surat directly and not even through Special Public Prosecutor.
As such there is no provision and/or there was no requirement and/or
necessity of submitting the interim furtherinvestigation report and that
too in the Court where no proceedings were pending. Similarly, he
submitted another interim furtherinvestigation report on 10.04.2012
and again he directly submitted the same in the Court of learned 2nd
Additional Sessions Judge, Surat where no proceedings were pending. It
appears from the interim furtherinvestigation report and it is not in
dispute that as such subsequent IO was aware of the pendency of the
present revision application and still he submitted the interim further
investigation reports in the court of learned 2nd Additional Sessions
Judge, Surat as if he wanted to oblige and/or favour the accused
persons. On perusal of the interim furtherinvestigation reports dated
09.03.2012 and 10.04.2012, it appears that the said IO has virtually
given the finding and virtually acquitted the accused persons. As stated
hereinabove, as such there is no provision for submitting the interim
37
R/CR.RA/44/2012 CAV JUDGMENT
furtherinvestigation reports. A furtherinvestigation report on further
investigation is required to be submitted after the furtherinvestigation
by the IO is concluded. Even after furtherinvestigation, if a further
investigation report is to be submitted, the same is required to be
submitted before the concerned Magistrate Court and not before the
Revisional Court where no proceedings were pending. It appears that by
giving the interim furtherinvestigation report despite having knowledge
that the present revision application is pending and this Court has seized
of the matter, the IO has tried to make the present proceedings
infructuous. At this stage it is required to be noted that Shri Maulik
Nanavati, learned Special Public Prosecutor appearing on behalf of the
investigating agency and the State has made a categorical statement that
the furtherinvestigation reports submitted by the subsequent officer
cannot be sustained and the State disowns the same and they cannot be
relied upon in any proceedings and the same are required to be quashed
and set aside. Thus, it prima facie appears that by submitting the
aforesaid interim furtherinvestigation reports, the subsequent IO has
acted malafidely and with a view to help the accused persons. It is
required to be noted at this stage that as such after the charge
sheet/report was submitted by the IO against the accused persons in the
court of learned CJM, the learned CJM took the cognizance and issued
the summonses against the accused and the accused appeared before the
learned CJM and even their discharge applications were rejected by the
learned CJM which came to be confirmed by the learned Sessions Court
against which special criminal application was pending before this Court
and in the meantime and despite having knowledge and awareness of
the aforesaid proceedings, he has submitted the interim further
investigation reports dated 09.03.2012 and 10.04.2012 which otherwise
is not permissible.
38
R/CR.RA/44/2012 CAV JUDGMENT
[9.3] Even the conduct on the part of the accused also deserves serious
consideration. After completing the investigation and having found
prima facie case against the accused, the IO submitted the chargesheet
against the accused persons in the Court of learned CJM and the learned
CJM not only took the cognizance but even issued the summonses
against the accused persons. That thereafter, after a period of one year
and two months, the accused submitted the application Exhs.28 and 31
for furtherinvestigation and also simultaneously submitted the
application Exhs.29 and 32 for discharge. Simultaneously, the accused
also submitted an application being Criminal Miscellaneous Application
No.816/2011 before the learned CJM against the original complainant
with a prayer for registering an FIR under section 154(2) CrPC and in
the alternative for investigation under section 156(3) of the CrPC
making same allegations which were mentioned while submitting the
applications for furtherinvestigation – Exhs.28 & 31. That the
applications for discharge of the accused came to be dismissed by the
learned CJM against which the accused persons preferred criminal
revision application before the learned Sessions Court, Surat being
Criminal Revision Application No.428/2011, which also came to be
dismissed by the learned Sessions Court by order dated 06.01.2012
against which Special Criminal Application No.727/2012 came to be
preferred by the accused, which was pending before this Court. In the
meantime, the learned Sessions Judge passed the impugned order on
10.01.2012 and thereafter, after a period of 2 months, the further
investigation was handed over to the present IO Shri Munshi on
06.03.2012, who submitted the interim furtherinvestigation reports on
09.03.2012 and 10.04.2012 virtually giving clean chit / acquitting the
accused and immediately on receipt of the said reports [it is also
required to be considered how the accused got the copies of those
reports], the accused persons withdrew the Special Criminal Application
39
R/CR.RA/44/2012 CAV JUDGMENT
No.727/2012 pending before this Court with a liberty to file fresh
application for discharge after investigation is over. At this stage it is
required to be noted that while withdrawing the aforesaid special
criminal application with above liberty, nothing was disclosed before
this court that in between there is an order passed by the learned
sessions court in Criminal Revision Application No.376/2011 permitting
the furtherinvestigation and there are interim furtherinvestigation
reports dated 09.03.2012 and 10.04.2012 and even this Court was also
kept in dark.
Even on merits also, the impugned judgment and order passed by
the learned Sessions Judge permitting furtherinvestigation cannot be
sustained.
[9.4] Considering the impugned order it appears that the accused
sought furtherinvestigation on the grounds which are as such their
defences which are required to be considered at the time of trial.
While passing the impugned judgment and order even the
learned Additional Sessions Judge has not properly appreciated and/or
considered the scope and ambit of the furtherinvestigation under
section 173(8) of the CrPC. The learned Additional Sessions Judge has
not appreciated and/or considered the fact that as such after the report
was filed by the IO and the learned Magistrate has taken the cognizance
and issued the summonses against the accused, there cannot be any
furtherinvestigation that too at the instance of the accused and on the
grounds which are as such the defences of the accused which are
required to be considered at the time of trial. Under the circumstances,
even on merits also, the impugned judgment and order passed by the
learned Sessions Court cannot be sustained and the same deserves to be
quashed and set aside.
40
R/CR.RA/44/2012 CAV JUDGMENT
[10.0]
In view of the above and for the reasons stated above,
Criminal Revision Application No.44/2012 is hereby allowed and the
impugned judgment and order dated 10.01.2012 passed by the learned
2nd Additional Sessions Judge, Surat in Criminal Revision Application
No.376 of 2011 is hereby quashed and set aside and all consequential
furtherinvestigation reports/interim furtherinvestigation reports
submitted by the IO are not required to be acted upon in any
proceedings whatsoever. At this stage it is required to be noted that
even the learned Special Public Prosecutor has also made a categorical
statement that the interim furtherinvestigation reports dated
09.03.2012 and 10.04.2012 and/or furtherinvestigation reports shall
not be acted upon in any manner whatsoever and in any proceedings.
Under the circumstances it is directed that any interim further
investigation reports / furtherinvestigation report pursuant to the
impugned judgment and order passed by the learned 2nd Additional
Sessions Judge, Surat shall not be acted upon in any manner whatsoever
in any other proceedings and they are to be treated as non est. Rule is
made absolute accordingly to the aforesaid extent.
Criminal Miscellaneous Application No.1746/2012
So far as Criminal Miscellaneous Application No.1746/2012 in Criminal
Revision Application No.44/2012 submitted by the applicants herein –
original accused Nos.2 to 6 for permitting them to be joined as party
respondents in Criminal Revision Application No.44/2012 is concerned,
it is required to be noted that Criminal Revision Application No.44/2012
has been preferred by the original complainant challenging the
judgment and order passed by the learned 2nd Additional Sessions Court,
Surat in Criminal Revision Application No.376/2011, which was
preferred by the original accused No.1 only against the order passed
below Exh.28 by the learned Additional Chief Judicial Magistrate, Surat
41
R/CR.RA/44/2012 CAV JUDGMENT
rejecting his application for further investigation. It is required to be
noted that so far as the applicants herein – original accused Nos.2 to 6
are concerned, their application for further investigation under section
173(8) of the CrPC was also rejected by the learned Additional CJM,
however, they did not challenge the same before the Revisional Court.
As stated hereinabove, only the original accused No.1 challenged the
order of rejection of the prayer of further investigation under section
173(8) of the CrPC before the learned Sessions Court by way of Criminal
Revision Application No.376/2011. Under the circumstances, so far as
the applicants herein – original accused Nos.2 to 6 are concerned, the
order passed by the learned Additional CJM rejecting their application
for further investigation under section 173(8) of the CrPC has attained
finality as they did not challenge the same before the Revisional Court.
Under the circumstances, now, they cannot be permitted to be joined as
party respondents in Criminal Revision Application No.44/2012
preferred against the order passed by the learned Sessions Court in
Criminal Revision Application No.376/2011, which was filed by the
original accused No.1 only. It is required to be noted that so far as
original accused No.1 is concerned, he is already a respondent in main
Criminal Revision Application No.44/2012 and he has been heard fully
and in extenso.
It is also required to be noted that as such the original accused
Nos.2 to 6 have not challenged the order passed by the learned
Additional CJM rejecting their application for further investigation under
section 173(8) of the CrPC and even till date they have never challenged
the said order. Under the circumstances, present application permitting
the applicants to be joined as party respondents in Criminal Revision
Application No.44/2012 deserves to be dismissed and is, accordingly,
dismissed.
42
R/CR.RA/44/2012 CAV JUDGMENT
Special Criminal Application No.1131/2012
So far as Special Criminal Application No.1131/2012 preferred by
the original revisionist challenging the impugned order passed by the
learned Additional Sessions Judge, Surat in Criminal Revision
Application No.346/2011 is concerned, it is required to be noted that as
such the learned Additional Sessions Judge has not considered the said
Criminal Revision Application No.346/2011 on merits, however, has
disposed of the said Criminal Revision Application No.346/2011 in view
of his order passed in Criminal Revision Application No.376/2011.
Therefore, as such the said revision application which was preferred
against the order dated 09.09.2011 passed by the learned CJM in
Criminal Miscellaneous Application No.816/2011 independently and on
merits. Under the circumstances, so far as the impugned order passed
by the learned Additional Sessions Judge disposing of Criminal Revision
Application No.346/2011 is concerned, the same deserves to be quashed
and set aside and the matter is to be remitted back to the learned
Additional Sessions Judge, Surat to consider the same and decide and
dispose of the same in accordance with law and on merits to consider
the legality and validity of the order impugned in the said revision
application.
Under the circumstances, without expressing anything on merits
in favour of either parties and with respect to the legality and validity of
the order dated 09.09.2011 passed by the learned CJM in Criminal
Miscellaneous Application No.816/2011, impugned order dated
10.01.2012 passed by the learned CJM in Criminal Revision Application
No.346/2011 is hereby quashed and set aside and the matter is
remanded to the learned revisional court to decide and dispose of the
same in accordance with law and on merits. However, it is made clear
that this Court has not expressed anything on merits with respect to the
legality and validity of the order dated 09.09.2011 passed by the learned
43
R/CR.RA/44/2012 CAV JUDGMENT
CJM, Surat in Criminal Miscellaneous Application No.816/2011 and all
the contentions which may be available to the respective parties are kept
open which has to be considered by the learned Additional Sessions
Judge in accordance with law and on merits. Considering the fact that
as the learned CJM dismissed the Criminal Miscellaneous Application
No.816/2011 and therefore, to that extent the order was passed in
favour of the original respondents – proposed accused in Criminal
Miscellaneous Application No.816/2011, it will be open for the original
opponents – proposed accused of Criminal Miscellaneous Application
No.816/2011 to submit an appropriate application permitting them to
be joined as party respondents in the said Criminal Revision Application
No.346/2011 and as and when such an application is made, the same be
considered by the learned revisional court in accordance with law, for
which also this Court has not expressed anything on merits. Rule is
made absolute to the aforesaid extent so far as Special Criminal
Application No.1131/2012 is concerned.
[11.0]
In view of the above and for the reasons stated above,
Criminal Revision Application No.44/2012 is allowed as stated
hereinabove and the impugned judgment and order dated 10.01.2012
passed by the learned 2nd Additional Sessions Judge, Surat in Criminal
Revision Application No.376 of 2011 is hereby quashed and set aside
and consequently all further steps/action pursuant to the said order are
quashed and set aside and consequently interim further investigation
reports dated 09.03.2012 and 10.04.2012 are also quashed and set aside
and it is directed that the said reports and/or any other further
investigation carried out by the Investigating Officer pursuant to the
impugned order are not to be implemented at all in any proceedings in
any manner whatsoever and the same are directed to be treated as non
est.
44
R/CR.RA/44/2012 CAV JUDGMENT
Criminal Miscellaneous Application No.1746/2012 in Criminal
Revision Application No.44/2012 is hereby dismissed as stated
hereinabove.
Special Criminal Application No.1131/2012 is hereby allowed to
the aforesaid extent and the impugned order dated 10.01.2012 passed
by the learned CJM in Criminal Revision Application No.346/2011 is
hereby quashed and set aside and the matter is remanded to the learned
revisional court to decide the said revision application afresh in
accordance with law and on merits. Rule is made absolute to the
aforesaid extent only with above direction and observations.
Sd/
(M.R.SHAH, J.)
Ajay
45
R/CR.RA/44/2012 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION NO. 44 of 2012
With
CRIMINAL MISC.APPLICATION NO. 1746 of 2012
In CRIMINAL REVISION APPLICATION NO. 44 of 2012
With
SPECIAL CRIMINAL APPLICATION NO. 1131 of 2012
For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH
Sd/
=============================================
1.
Whether Reporters of Local Papers may be allowed to see
the judgment ?
Yes
2.
To be referred to the Reporter or not ?
Yes
3.
Whether their Lordships wish to see the fair copy of the
judgment ?
No
4.
Whether this case involves a substantial question of law as to
the interpretation of the constitution of India, 1950 or any
order made thereunder ?
No
5.
Whether it is to be circulated to the civil judge ?
No
=============================================
NITINBHAI MANGUBHAI PATEL....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
=============================================
Appearance:
Criminal Revision Application No.44/2012
MR SV RAJU, SR. ADVOCATE with MR AB MUNSHI, ADVOCATE for the Applicant
MR RJ GOSWAMI, ADVOCATE for the Respondent No. 2
MR MAULIK NANAVATI, SPL. PUBLIC PROSECUTOR for the Respondent No. 1
Special Criminal Application No.1131/2012
MR NM KAPADIA, ADVOCATE for the Applicants
MR MAULIK NANAVATI, SPL. PUBLIC PROSECUTOR for the Respondent
=============================================
CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
Date : 05/08/2013
COMMON CAV JUDGMENT
[1.0]
As both these, Revision Application as well as the Special
Criminal Application arise out of the common judgment and order
passed by the learned Revisional Court – learned Sessions Court, Surat,
1
R/CR.RA/44/2012 CAV JUDGMENT
both these applications are heard, decided and disposed of by this
common judgment and order.
[1.1]
RULE. So far as Criminal Revision Application No.44 of
2012 is concerned, Shri R.J. Goswami, learned advocate waives service
of notice of Rule on behalf of the respondent No.2 herein and Shri
Maulik Nanavati, learned Special Public Prosecutor waives service of
notice of Rule on behalf of respondent No.1 State as well as the
Investigating Officer. Similarly, so far as RULE in Special Criminal
Application No.1131 of 2012 is concerned, Shri Maulik Nanavati,
learned Special Public Prosecutor waives service of notice of Rule on
behalf of respondent State of Gujarat. In the facts and circumstances of
the case and with the consent of learned advocates appearing on behalf
of the respective parties, present Revision Application as well as Special
Criminal Application are taken up for final hearing and heard finally.
[2.0]
Criminal Revision Application No.44 of 2012 has been
preferred by the applicant herein – original complainant to quash and
set aside the impugned judgment and order dated 10.01.2012 passed by
the learned Sessions Court – learned 2nd Additional Sessions Judge,
Surat in Criminal Revision Application No.376 of 2011 by which the
learned Revisional Court has allowed the said Revision Application
preferred by the respondent No.2 herein – original accused and has
quashed and set aside the order dated 24.08.2011 passed by the learned
Additional Chief Judicial Magistrate, Surat by which the learned
Magistrate rejected the application Exh.28 submitted by respondent
No.2 – original accused for furtherinvestigation under Section 173(8) of
the Code of Criminal Procedure, 1973 (hereinafter referred to as
“CrPC”) and consequently allowed the said application Exh.28 and
ordered furth
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