Hanubhai Bhimabhai Vaghela vs State Of Gujarat on 11 July, 2022

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Gujarat High Court

Hanubhai Bhimabhai Vaghela vs State Of Gujarat on 11 July, 2022

Bench: Nirzar S. Desai

      R/SCR.A/9796/2018                                 ORDER DATED: 11/07/2022



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CRIMINAL APPLICATION NO. 9796 of 2018

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                          HANUBHAI BHIMABHAI VAGHELA
                                    Versus
                          STATE OF GUJARAT & 2 other(s)
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Appearance:
HCLS COMMITTEE(4998) for the Applicant(s) No. 1
MR M D RAHEVAR(6268) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MS MAITHILI MEHTA APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                                 Date : 11/07/2022

                                  ORAL ORDER

1. By way of this petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 ('Cr.P.C.', for short), the petitioner has challenged the order dated 10.07.2018 passed by the learned 2nd Additional Sessions Judge, Dhrangadhra in Criminal Revision Application No.13 of 2018 confirming the order dated 15.012.2017 passed by the learned Additional Chief Judicial Magistrate, Dhrangadhra in Criminal Case No.624 of 2015.

2.1 It is the case of the petitioner that the petitioner is the husband of original complainant viz. Gitaben Hanubhai Vaghela, who lodged an FIR being I- C.R.No. Page 1 of 7 Downloaded on : Thu Jul 14 21:32:07 IST 2022 R/SCR.A/9796/2018 ORDER DATED: 11/07/2022 60 of 2013 registered on 22.05.20213 before Dhrangadhra Police Station, Surendranagar for offences under Sections 323, 324, 504 of Indian Penal Code as well as under Section 135 of the Bombay Police Act against two persons viz. (1) Thobhanbhai Virabhai Rathod and (2) Dilipbhai Devjibhai Rathod, both are the residents of Village Khambhda, Tal: Dhrangadhra.

2.2 After the aforesaid FIR was registered, charge- sheet was filed and even after the trial was commenced, one of the injured witnesses Hanubhai Devjibhai Vaghela, the present petitioner, who happens to be husband of the complainant, preferred an application under Section 173 (8) of the Code of Criminal Procedure, 1973 ('Cr.P.C.', for short) before the Court of learned Additional Chief Judicial Magistrate seeking further investigation in the matter on the ground that out of four persons, who assaulted the complainant Pravin Virabhai Rathod and Gautam Devji Rathod are not arraigned as accused and no charge-sheet is filed against them. He, in his application, also prayed for addition of section 326 of the Indian Penal Code.

Page 2 of 7 Downloaded on : Thu Jul 14 21:32:07 IST 2022

R/SCR.A/9796/2018 ORDER DATED: 11/07/2022 2.3 The aforesaid application was rejected by learned 2nd Additional Chief Judicial Magistrate, Dhrangadhra, vide order dated 15.12.2017 on the ground that as per ratio laid down by Hon'ble the Supreme Court in the case of Amrutbhai Shambhubhai Patel vs. Sumanbhai Kantibhai Patel and Ors. reported in (2017) 3 GLR 2160 (in the order, it is mentioned as '2161'), since the charge-sheet was already filed, the Magistrate has no power to direct the investigation under Section 156(3) of the Cr.P.C. as the Magistrate has no power to direct the investigation after the cognizance is taken.

2.4 The petitioner challenged the aforesaid order dated 15.12.2017 before the learned 2 nd Additional Sessions Judge, Dhrangadhra by preferring Criminal Revision Application No.13 of 2018 which was also dismissed by learned 2nd Additional Sessions Judge, Dhrangadhra vide order dated 10.07.2018.

2.5 Being aggrieved and dissatisfied with the aforesaid two orders, petitioner has preferred this petition.

3. Heard learned advocate Mr.Rahevar, who though Page 3 of 7 Downloaded on : Thu Jul 14 21:32:07 IST 2022 R/SCR.A/9796/2018 ORDER DATED: 11/07/2022 vehemently submitted that the order passed by learned Additional Chief Judicial Magistrate, Dhrangadhra and confirmed by learned 2nd Additional Sessions Judge are erroneous, he could not point out any contrary provisions of law whereby the orders can be said to be erroneous. Learned advocate Mr.Rahevar also does not have any instructions about the stage of the trial. He states that though in the year 2018 the trial was going out, however, thereafter he is not in touch with the petitioner and absolutely unaware about the stage of the trial. Learned advocate Mr.Rahevar, upon inquiry from the Court, also could not point out that petitioner being witness what locus he has to seek further investigation as he is neither the complainant nor the Investigating Officer.

4. Learned Additional Public Prosecutor Mr.Mehta opposing this petition vehemently submitted that petitioner has no locus to file an application for further investigation under Section 173(8) of the Cr.P.C. as the petitioner is not the complainant and he is only the witness. She submitted that the complainant has never raised any grievance that the investigation has not Page 4 of 7 Downloaded on : Thu Jul 14 21:32:07 IST 2022 R/SCR.A/9796/2018 ORDER DATED: 11/07/2022 been carried out in proper manner. Further, she submitted that, as observed in order of the learned trial Court that after charge-sheet is filed and cognizance is taken, Magistrate has no power to order further investigation. She submitted that trial is pending since the year 2018 and in the trial also petitioner is also taking undue adjournment on the ground of pendency of present petition. She, therefore, prayed for dismissal of this petition.

5. Having heard both the learned advocates for the parties and considering the material on record, it is undisputed fact that petitioner is not the complainant but is husband of the complainant who is shown as one of the witnesses in the charge-sheet. Therefore, there is force in the argument of learned Additional Public Prosecutor that present petitioner does not have any locus to challenge the investigation by seeking further investigation. As pointed out by learned Additional Public Prosecutor Ms.Mehta that offence was already registered against the accused persons and investigation was carried out by the Investigating Officers, the complainant was available for registering Page 5 of 7 Downloaded on : Thu Jul 14 21:32:07 IST 2022 R/SCR.A/9796/2018 ORDER DATED: 11/07/2022 the offence and accordingly FIR was registered. However, thereafter the complainant has not raised any grievance about the manner in which investigation has progressed. Since the application is not preferred by the complainant, the present who is shown as witness in the charge-sheet cannot file an application for further investigation as he does not have any locus. There is settled principle of law laid down in case of Amrutbhai Shambhubhai Patel vs. Sumanbhai Kantibhai Patel and Ors. (supra) as observed by Hon'ble Apex Court that once the investigation is over and cognizance of offence is taken and process is issued, except on a request by Investigating Agency, further investigation can not be directed.

6. In view of the above settled propositions of law and considering the fact that the trial is commenced in the year 2018 and at that time also few witnesses were examined still merely because of pendency of this petition, trial is not being proceeded as well as considering the fact that the petitioner does not have any locus to challenge investigation and seek further investigation under Section 173(8) of Cr.P.C., present Page 6 of 7 Downloaded on : Thu Jul 14 21:32:07 IST 2022 R/SCR.A/9796/2018 ORDER DATED: 11/07/2022 petition fails and requires to be dismissed. It is dismissed accordingly. No order as to costs.

(NIRZAR S. DESAI,J) MISHRA AMIT V. Page 7 of 7 Downloaded on : Thu Jul 14 21:32:07 IST 2022

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