Gujarat High Court
Shri Mahila Gruh Udyog Lijjat Pappad ... vs State Of Gujarat on 19 January, 2021
Author: B.N. Karia
Bench: B.N. Karia
R/SCR.A/10663/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 10663 of 2019
With
CRIMINAL MISC.APPLICATION (FOR EXTENSION OF INTERIM RELIEF)
NO. 1 of 2020
In R/SPECIAL CRIMINAL APPLICATION NO. 10663 of 2019
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SHRI MAHILA GRUH UDYOG LIJJAT PAPPAD THRO SWATIBEN R.
PARADAKAR
Versus
STATE OF GUJARAT
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Appearance:
MR NV GANDHI(1693) for the Applicant(s) No. 1
DELETED(20) for the Respondent(s) No. 6
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3,4,5
MS MONALI BHATT, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE B.N. KARIA
Date : 19/01/2021
ORAL ORDER IN SPECIAL CRIMINAL APPLICATION NO. 10663 of 2019
Rule returnable forthwith. Learned APP waives service of notice of Rule for and on behalf of the respondentState.
By way of present petition, the petitioner has challenged the impugned order dated 19.11.2019 below Exh.99 passed by learned JMFC, Valod in Criminal Case No.5 of 2010, whereby the learned JMFC, Valod was pleased to reject the application under Section 173(8) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Cr.P.C." for short).
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R/SCR.A/10663/2019 ORDER Heard learned advocate for the petitioner.
It is submitted by learned advocate for the petitioner that the petitioner through its Administrator viz. Smt. Laxmiben Navneetlal Parmar had lodged an FIR bearing C.R.No.I19 of 2020 before Valod Police Station against (a) Kaushikaben Ajitbhai Chaudhari,
(b) Dashratbhai Nagarbhai Piprodiya (c) Parvatiben Dhirubhai Rathod and (d) Ilaben Pankajbhai Chaudhari for the offences punishable under Sections 467, 468, 471, 420, 511, 114, 34 and 120B of the Indian Penal Code read with Sections 78 and 79 of the Trade and Mercantile Act, 1999 read with Section 63 of Copyrights Act. It was the case of the complainant that the accused named in the FIR had hatched the conspiracy in collusion with each other by fabricating registration certificate in the name of the petitioner. Further, by applying forged rubber stamp in the name of "Shri Mahila Gruh Udyog Lijjat Pappad, Valod", had concocted forged resolutions and produced the same before the TalaticumMantri, Valod with a view to grab the petitioner - trust's properties situated at Valod, etc. That pursuant to the said FIR, the Investigating Officer, Valod Police Station had carried out investigation. That after such investigation, on 30.12.2009, the Investigating Officer has submitted his report under Section 173 of the Cr.P.C. before Page 2 of 8 Downloaded on : Fri Jan 22 21:23:50 IST 2021 R/SCR.A/10663/2019 ORDER the learned JMFC at Valod against (a) Kaushikaben Ajitbhai Chaudhari, (b) Parvatiben Dhirubhai Rathod and (c) Ilaben Pankajbhai Chaudhari for the offence punishable under Sections 467, 468, 471, 420, 411, 114, 34 and 120B of the Indian Penal Code and Sections 78 and 79 of the Trade and Mercantile Act, 1999 read with Section 63 of the Copyrights Act. That in view of the said report under Section 173 of the Cr.P.C., Criminal Case No.5 of 2010 was registered against the said accused with the Court of learned Principal Civil Judge and JMFC, Valod, Dist.: Tapi. That in the meantime, out of the said accused, accused nos.1 and 3 had instituted Civil Suits before the learned Principal Senior Civil Judge at Vyara, Dist.: Tapi, seeking decree of declaration declaring that the petitioner has no authority to issue order of cancellation of membership, permanent injunction, damages, etc. That the plaintiff had also filed Exh.5 application which was rejected vide order dated 24.06.2011. That in support of the said suit, plaintiff - Kaushikaben Ajitbhai Chaudhari has submitted her examinationin chief on affidavit vide Exh.26 who was crossexamined on behalf of the petitioner - trust/defendant. That in her crossexamination, the said plaintiff and above named accused had admitted their act of tampering with the registration certificate issued by the learned Page 3 of 8 Downloaded on : Fri Jan 22 21:23:50 IST 2021 R/SCR.A/10663/2019 ORDER Charity Commissioner. That the learned Principal Senior Civil Judge at Vyara, Dist.: Tapi vide order dated 10.05.2013 was pleased to dismiss the said suit on the ground that the management and other members have rightly acted as per the rules and regulations of the society and nowhere any illegality whatsoever is proved before this Court. Moreover, it is the plaintiff who has acted against the interest of the society and has breached the rules and regulations of the society by enacting a new society of similar name and same object and also the plaintiff tried to transfer the property of society for which criminal proceedings have already been initiated by the plaintiff. That pursuant to the disclosing of material facts, pending Criminal Case No.5 of 2010, the learned Additional Public Prosecutor, Valod had preferred application under Section 173(8) of the Cr.P.C. below Exh.99 seeking further investigation in the matter so that truth can come on record. That the learned JMFC, Valod, Dist.: Tapi without appreciating the fact that further investigation as prayed for is necessary, in the interest of justice, vide impugned order dated 19.11.2019 was pleased to reject the said application on the ground of delay in preferring the same. Hence, it was requested by leaned advocate for the petitioner to allow present petition by quashing and setting aside impugned Page 4 of 8 Downloaded on : Fri Jan 22 21:23:50 IST 2021 R/SCR.A/10663/2019 ORDER order dated 19.11.2019 below Exh.99 passed by learned JMFC, Valod in Criminal Case No.5 of 2010.
Learned APP for the respondentState has supported the submissions made by learned advocate for the petitioner. It appears that this Court was pleased to issue notice by an order dated 18.12.2019, making it returnable on 11.06.2020. Interim relief was granted in terms of Para8(D) of the petition and direct service was permitted. That the petitioner has filed an affidavit stating that he himself has gone to serve the copy of notice of this petition containing adinterim order along with memo of petition upon the respondents at the addresses mentioned in the cause title of this petition and he has himself served the copy of the notice of this petition containing adinterim order along with memo of petition upon respondent no.1 on 31.12.2019, respondent no.2 on 13.01.2020, respondent no.4 on 13.01.2020 at the address mentioned in the cause title of this petition which is duly stamped and signed by the authorized person and respondent no.3 has expired. That respondent nos.2 and 4 have refused to accept the notice and nobody is appearing on their behalf before this Court.
Having gone through the facts and circumstances of present case as well as submissions made by learned advocate for the Page 5 of 8 Downloaded on : Fri Jan 22 21:23:50 IST 2021 R/SCR.A/10663/2019 ORDER petitioner and learned APP for the respondentState, it appears that Criminal Case No.5 of 2010 is pending before learned JMFC, Valod, Dist.: Tapi and application was submitted under Section 173(8) of the Cr.P.C. below Exh.99, seeking further investigation in the matter, so that truth can come on record. It also appears from the record that accused no.1 and 3 have filed Civil Suit before the learned Principal Senior Civil Judge, Vyara with a request to pass a decree of declaration declared that the petitioner has no authority to issue order of cancellation of membership. Permanent injunction was also sought by the accused persons. Application Exh.5 was also preferred by the accused persons i.e. plaintiffs before the learned Trial Court which was rejected by order dated 24.06.2011. In the said suit also, respondent no.1 submitted examination in chief on affidavit at Exh.26 and she was crossexamined on behalf of the petitioner/trust. She has stated in her cross examination that the plaintiff and above named accused had admitted their act of tampering with the registration certificate issued by the learned Charity Commissioner. The learned Principal Senior Civil Judge at Vyara, Dist.: Tapi vide order dated 10.05.2013 dismissed the said suit preferred by the accused persons on the ground that the management and other members have rightly acted as per the rules Page 6 of 8 Downloaded on : Fri Jan 22 21:23:50 IST 2021 R/SCR.A/10663/2019 ORDER and regulations of the society and nowhere any illegality whatsoever is proved before this Court. Pursuant to disclosing of material facts, pending Criminal Case No.5 of 2010, the learned Additional Public Prosecutor, Valod had preferred application under Section 173(8) of the Cr.P.C. below Exh.99 seeking further investigation in the matter. The power of investigation for further investigation under Section 173(8) of Cr.P.C. is not taken away only because chargesheet is filed. Further investigation would be permissible if order of cognizance of offence has been taken by the Magistrate as has been laid down by the Hon'ble Apex Court in the case of Dinesh Dalmia Vs. C.B.I. Reported in AIR 2008 SC 78. There is no express in the Cr.P.C. which would bar the right of the police for further investigation, after cognizance of the case has been taken by the Magistrate. Submissions of police report under Section 173(2) of the Cr.P.C. would not preclude Magistrate from directing further investigation. The same ratio is laid down in the case of Indranil Mukherjee Vs. State of West Bengal reported in 2018 Cri. L. J. 4609. In the present case, considering the facts of the case, further investigation was required to be permitted so as to find out truth in the matter and to reach at correct decision. In the facts on hand, in the civil proceedings, accused no.1 has admittedly Page 7 of 8 Downloaded on : Fri Jan 22 21:23:50 IST 2021 R/SCR.A/10663/2019 ORDER accepted her wrong doing on affidavit in her examination in chief at Exh.26 which subsequent disclosure of new material which necessitates further investigation only to secure fair investigation, and therefore, submissions made by learned advocate for the petitioner is required to be considered. This petition is not objected by the respondent and therefore, impugned order dated 19.11.2019 below Exh.99 passed by learned JMFC, Valod in Criminal Case No.5 of 2010 is hereby quashed and set aside. The Investigating Officer shall proceed further investigation and may submit a report within a period of one month from the date of receipt of this order.
In view of the above observations, present petition stands disposed of. Rule is made absolute accordingly.
ORDER IN CRIMINAL MISC.APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2020 In view of the order passed in the main matter i.e. Special Criminal Application No.10663 of 2019, present application does not survive and accordingly, the same is disposed of.
(B.N. KARIA, J) rakesh/ Page 8 of 8 Downloaded on : Fri Jan 22 21:23:50 IST 2021