Gujarat High Court
Parakramsinh Khumansinh Zala vs State Of Gujarat on 9 March, 2021
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
R/SCR.A/8323/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 8323 of 2020
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PARAKRAMSINH KHUMANSINH ZALA
Versus
STATE OF GUJARAT
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Appearance:
MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1
MR VIRAT G POPAT(3710) for the Respondent(s) No. 3
NOTICE SERVED(4) for the Respondent(s) No. 2,4,5,6,7,8
MS NISHA THAKORE ADDL. PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 09/03/2021
ORAL ORDER
1. By way of present petition, the petitioner seeks further investigation with regard to the grievance raised by him before the learned Sessions Court vide application Exhibit 229 in Sessions Case No.55 of 2018 pending before the learned Sessions Court at Morbi.
2. Facts leading to this petition in brief are that:
2.1 An FIR came to be registered by the petitioner herein on 19.03.2018 at Morbi Taluka Police Station being CR I No.30 of 2018 for the offences punishable under Sections 143, 147, 148, 307, 302 and 34 of the Indian Penal Code and for the offence punishable under Section 25(1-B) A and 27(2) of the Arms Act and Section 135 of the Gujarat Police Act. The investigation had been concluded by the Investigating Officer by filing Page 1 of 19 Downloaded on : Fri Mar 12 21:19:07 IST 2021 R/SCR.A/8323/2020 ORDER charge-sheet on 04.06.2018. At this stage, it would be pertinent to mention here that while the accused Nos.2 to 6 had been released on regular bail by this Court and whereas even the accused No.1 had initially been released by this Court vide order dated 24.10.2019, the same came to be challenged before the Supreme Court by the present applicant vide Criminal Appeal No.327 of 2020 and whereas the Supreme Court while setting aside the order of this Court, had directed the trial Court to conclude the proceedings as early as possible and preferably within 9 months from the date of receipt of the order of the Supreme Court. It is further stated that thereafter, the petitioner herein had preferred Special Criminal Application No.5155 of 2020 inter alia seeking direction against the investigating agency to inquire and submit a report with regard to the grievance raised by the applicant and whereas vide order dated 06.10.2020, the applicant had been permitted to withdraw the petition with a view to approach before the appropriate forum. Pursuant to the said order, the applicant herein had moved the learned Sessions Court vide application Exhibit 229 under Section 173(8) of the Code of Criminal Procedure praying for further investigation. It is stated by the petitioner herein in the said application that vide the criminal complaint, the allegation of firing by using fire arms had been alleged and whereas the same had resulted into death of one Sahdevsinh Lalubha Zala and the complainant and another witness have sustained injuries on account of said firing. It is further submitted that after the investigation, the charge-
sheet had been filed and whereas in the course of investigation, weapons had been seized by the Investigating Officer and in the Panchnama as well as FSL report, it is found that the said weapons had been tampered with. It is stated that while some of the weapons had been recovered from the accused and some of the weapons were recovered through a relative and the same were licensed weapons yet in most of the weapons when they were seized, the weapons were found that their firing pins having been broken. It Page 2 of 19 Downloaded on : Fri Mar 12 21:19:07 IST 2021 R/SCR.A/8323/2020 ORDER is further alleged that the weapons though were in working condition at the relevant point of time when the alleged crime had taken place, with a view to destroy the evidence, the firing pins have been tampered with and therefore, the application for further investigation was necessitated. It is further alleged that since the petitioner has levelled an allegation against the Investigating Officer for working in connivance with the accused since he was working with the father of one of the accused, who was also a Police Inspector and it is further alleged that since even SP concerned and the Investigating Officer had worked with the father of one of the accused in Junagadh, therefore, this aspect of investigation had not been touched upon to facilitate the accused. It is further mentioned that an affidavit stating as much had been submitted before the High Court during regular bail hearing of main accused herein. Under such circumstances, further investigation was requested to be carried out by some Senior Officer and based upon the report, addition of appropriate section was requested.
2.2 Said application had been rejected by the learned Sessions Judge, Morbi and whereas in the course of hearing, a report vide Exhibit 223 had been submitted by the Investigating Officer, wherein he had denied the fact of tampering of weapons and whereas he had relied upon the report of the Forensic Science Laboratory, which according to the Investigating Officer did not help the cause of the application of the applicant for further investigation. Learned Sessions Judge relied upon a decision of this Court in the case of Suman Kantilal Patel Vs. Amrut Shambhubhai Patel in Special Criminal Application No. 2268 of 2014 , whereby this Court has inter alia held that the first informant does not have any right to seek further investigation and further the learned Sessions Court also referring to the fact that the application was given at belated stage when the trial is on the verge of its completion, had rejected the said application. The petitioner Page 3 of 19 Downloaded on : Fri Mar 12 21:19:07 IST 2021 R/SCR.A/8323/2020 ORDER being aggrieved by the said order, had approached this Court by way of this petition. At this stage, what would pertinent to mention here is that said order of the Sessions Court has not been impugned in the present petition and whereas this petition is preferred invoking powers of this Court under Article 14, 16, 226 and 227 of the Constitution of India and also under the Code of Criminal Procedure.
2.3 Record shows that initially the petition had been preferred joining the State through Public Prosecutor, High Court of Gujarat and Police Inspector, Morbi as respondent Nos.1 and 2 and whereas vide order dated 23.12.2020, this Court has noted grievance on behalf of the petitioner as to the manner and method in which the trial was being conducted and also to the relationship of the family members of accused No.1 and Investigating Officer and in such context, this Court (Coram: Paresh Upadhyay, J.) had permitted, at the request of the learned Advocate for the petitioner, to join the accused as party respondent. It would be further pertinent to mention that during the hearing before this Court, the petitioner had not agitated his grievance as regards the allegations against the learned Sessions Court, inter alia submitting that since vide a representation dated 26.08.2020, the petitioner has approached this Court on administrative side, therefore, they would not want to agitate on the said issue before this Court in this petition.
3. Heard Learned Advocate Shri Ashish M. Dagli for the petitioner, learned APP Ms. Nisha Thakore for the respondent State and learned Advocate Shri Virat Popat for the private respondent Nos.2 to 8 - original accused.
4. Learned Advocate Shri Dagli has submitted that the complaint very Page 4 of 19 Downloaded on : Fri Mar 12 21:19:07 IST 2021 R/SCR.A/8323/2020 ORDER clearly alleges that all these accused had attacked the complainant and his family members using fire arms. He further submits that the allegation is that all the accused had fired using fire arms held by them and while brother of the complainant Sahdevsinh had died on account suffering bullet wounds the complainant as well as another witness had sustained injuries on account of use of all fire arms. He further submits that P.M. Report of the deceased brother of the complainant clearly shows the principal cause of death as "died due to shock and hemorrhage on account of injuries to the body produced by discharge of fire arms". He further submits that all these fire arms were recovered through two Panchnamas being discovery Panchnama dated 24.07.2018 whereby two fire arms had been recovered at the behest of accused Nos.1 and 5 herein and whereas Panchnama dated 25.03.2018 whereby 4 fire arms were recovered from one Bhagirath Ranjitsinh Zala, who identified himself as a relative of the accused No.5 and
7. He further points out that 4 fire arms being 1 pistol, 1 revolver, 1 double barrel rifle and one single barrel rifle had been recovered through the relative named hereinabove and all of them being licensed weapons. It is further submitted by learned Advocate Shri Dagli that from the discovery panchnama dated 24.03.2020, 2 weapons have been recovered of which one was in working condition and another weapon had its firing pin and hammer slightly broken as per the Panchnama and whereas as regards the Panchnama dated 25.03.2020 of the 4 weapons recovered in all 4 weapons, the firing pins had been damaged. Learned Advocate Shri Dagli has submitted that since the allegation was upon all the accused of having fired from the fire arms held by them, the firing pin / hammer of the weapons had been deliberately broken with a view to destroy evidence. He further submits that this tampering with the evidence was done deliberately to save some of the accused. He further submits that the investigation had deliberately ignored this aspect and even though a clear offence had been Page 5 of 19 Downloaded on : Fri Mar 12 21:19:07 IST 2021 R/SCR.A/8323/2020 ORDER made out punishable under Section 201 of IPC, yet the investigation was not carried out on this aspect and the offence punishable under Section 201 had neither been included in the charge-sheet nor the charge had been framed on account of faulty investigation which was done deliberately to help the accused. Learned Advocate for the applicant in support of his submissions, has relied upon the decisions of the Supreme Court in the case of Dharam Pal Vs. State of Haryana & Ors. reported in 2015(4) Supreme (SC) 129, Karan Singh Vs. State of Haryana reported in 2013(12) SCC 529, Vinubhai Haribhai Malviya and Ors. Vs. the State of Gujarat and Ors. reported in AIR 2019 SCC 5233 and recent decision of the Supreme Court in the case of Neetukumar Nagaich Vs. the State of Rajasthan and Ors. reported in 2020 Supreme SC 545. On the basis of the above decisions, learned Advocate Shri Dagli submitted that in view of clear lacuna in the investigation, this Court may direct further direction on the aspect of offence under Section 201 of Indian Penal Code.
5. As against learned APP Ms. Nisha Thakore has submitted that the application under Exhibit 229 had been preferred by the petitioner, after the charge-sheet has been filed on 04.06.2018 and the trial has commenced and witnesses have been examined. Learned APP further submits that the complainant i.e. present petitioner herein had not filed any protest petition at the stage when the charge was framed nor when the Panchnama pointing out recovery of weapons had been drawn and had been placed on record and more particularly, even after, the FSL report had come on record as far back as on 01.09.2018. Learned APP has further submitted that the application for investigation with regard to the offence punishable under Section 201 of IPC has been made by the petitioner and whereas she submits that since the materials being relied upon by the petitioner are also there on record, therefore, the same could be remedied by the Sessions Page 6 of 19 Downloaded on : Fri Mar 12 21:19:07 IST 2021 R/SCR.A/8323/2020 ORDER Court in exercise of power available to the trial Court under Sections 216 and 319 of the Code of Criminal Procedure. Learned APP has also pointed out that as of now trial is at an advanced stage as the officer of the Forensic Science Laboratory has been examined, the witnesses including the complainant has been examined and the Investigating Officers have also been examined. Under such circumstances, learned APP submits that since directing for further investigation may delay the trial, more particularly, when the trial is proceeding under the direction of the Supreme Court to be concluded within specific time framed, therefore, this Court may not interfere at this stage. Learned APP has also relied upon the decision in the case of Vinubhai Haribhai Malviya (Supra) and submitted that the Supreme Court has in the said decision laid down that the Magistrate can exercise power under Section 173(8) of the Code of Criminal Procedure at all stages of the progress of the criminal case before the trial actually commenced. Thus, submitting, learned APP has requested that this application may be rejected by this Court.
6. Learned Advocate Shri Virat Popat appears on behalf of the original accused - respondent Nos.3 to 8 herein. In so far the submissions of the learned Advocate for the accused, the same are neither recorded nor being dealt with here for 2 reasons. Firstly, that the original accused were permitted to be joined vide order dated 22.12.2020 as regards allegation about the manner and method in which trial is to be stated in proceeding and further as regards, relationship of the family members of the accused No.1 with Investigating Officer. Since this Court has been informed that appropriate application / representation has been made by the original complainant before the High Court on administrative side as regards the allegation against the Sessions Court, and since no prayers have been sought for in this application as regards the same, this Court deems fit proper not Page 7 of 19 Downloaded on : Fri Mar 12 21:19:07 IST 2021 R/SCR.A/8323/2020 ORDER to deal with the same and Secondly, it is no more re integra that the Court is not obliged to hear the accused / proposed accused before any direction for further investigation is issued. For these reasons, as stated hereinabove, neither the submissions of the learned Advocate for the original accused are neither being recorded nor they are being dealt with herein.
7. Heard learned Advocates for the parties, who have not submitted further arguments.
8. After hearing the learned Advocates for the parties and having perused the record as well as authorities submitted, 3 issues arise for consideration of this Court; (i) whether the Magistrate can issue orders for further investigation under Section 173(8) of the CRPC, after the trial has commenced; (ii) whether the Constitutional Courts are encumbered in issuing direction for further investigation exercising the power under Article 226 and 227 of the Constitution of India and/ or exercising power of their inherent jurisdiction available to the Court under Section 482 of the CRPC; and (iii) whether in the facts of this case, further investigation ought to be ordered, more particularly, since the trial is stated to be at an advance stage and under the direction of the Hon'ble Supreme Court to be completed within specific time limit.
The facts as pointed out by the learned Advocate fort the petitioner, in the considered opinion of this Court, are very glaring. Two words that readily come to the mind of the Court as regards the investigation with respect to the facts as pointed out are 'ineptitude' and 'connivance'. In this regard, it is elaborated that the discovery panchnama had been drawn on 24.03.2018, whereby the accused No.1 and accused No.5 had volunteered to produce the weapon used by them in connection with the crime in Page 8 of 19 Downloaded on : Fri Mar 12 21:19:07 IST 2021 R/SCR.A/8323/2020 ORDER question from where they had hidden the same. From the discovery panchnama, it is revealed that the accused No.1 had voluntarily taken the Investigating Officer as well as Panchas to the place where the weapon had been hidden and the weapon had shown to the Investigating Officer, who had seized the same. The weapons in question recovered at the instance of accused No.1 being pistol, and in the panchnama, it is clearly mentioned that after the same has been recovered, the Investigating Officer had examined the same and had for the purpose of cheeking, whether the weapon was in working condition or not had cocked the same, whereupon he realized that the weapon was in working condition. As regards the accused No.5, single barrel country made gun had been recovered at his instance and upon examination, it was found that firing pin and the hammer of the weapons were broken. The weapons recovered from the accused No.1 had been numbered as sample 'W' and the same had been sent for examination of the Forensic Science Laboratory. The report of the Forensic Science Laboratory reveals that the firing pin of the weapon had been cut / broken. Thus, what is apparent is that when the weapon had been seized according to the Panchnama, it was in proper condition, whereas Forensic Science Laboratory Report states that the firing pin had been damaged. Thus, it appears that the weapon might have been tampered with after it had been seized.
9. Furthermore, from the record, it appears that total of 6 weapons had been seized including the weapon seized from the accused No.1 and all the weapons had been sent for examination by the Forensic Science Laboratory and out of the said 6 weapons, in 5 weapons including weapon of the accused No.1, as reported hereinabove, the firing pins were found to be damaged. The Forensic Science Laboratory had subjected all the weapons to barrel wash and whereas according to the Forensic Science Laboratory, Page 9 of 19 Downloaded on : Fri Mar 12 21:19:07 IST 2021 R/SCR.A/8323/2020 ORDER all the weapons had been used for firing before they had submitted for examination. Thus, from the report of the Forensic Science Laboratory, it becomes clear that though the weapons were used for firing, thereafter firing pins had been damaged before they had been sent for Forensic Science Laboratory examination. What would be worthwhile to be noted herein that the weapons had not been recovered by the police on their own, whereas as stated hereinabove, 2 weapons were recovered at the instance of the accused Nos.1 and 5, whereas remaining 4 weapons were produced by the relative of the accused, again all 4 weapons, which were produced by the relative of the accused were licensed weapons.
10. Under such circumstances, prima facie conclusion can be arrived at that the firing pins of the weapons had been deliberately damaged to temper with the evidence. Since it is duty of the investigation officer to find out where and in what circumstances, the firing pins of 5 out of the recovered 6 weapons were damaged, this Court is refraining from observing anything further.
11. As regards the powers of the Magistrate under Section 173(8) of CRPC, this Court deems it proper to refer to a judgment of the Supreme Court in the case of Hasanbhai Valibhai Qureshi V. State of Gujarat and Ors. reported (2004) 5 SCC 347, paras 11, 12 and 13 are relevant for the purpose of deciding the present issue and they are being quoted herein below:
"11. Coming to the question whether a further investigation is warranted, the hands of the investigating agency or the court should not be tied down on the ground that further investigation may delay the trial, as the ultimate object is to arrive at the truth.Page 10 of 19 Downloaded on : Fri Mar 12 21:19:07 IST 2021
R/SCR.A/8323/2020 ORDER
12. Sub-section (8) of Section 173 of the Code permits further investigation, and even dehors any direction from the court as such, it is open to the police to conduct proper investigation, even after the court took cognisance of any offence on the strength of a police report earlier submitted. All the more so, if as in this case, the Head of the Police Department also was not satisfied of the propriety or the manner and nature of investigation already conducted.
13. In Ram Lal Narang v. State (Delhi Admn.) [(1979) 2 SCC 322: 1979 SCC (Cri) 479 : AIR 1979 SC 1791] it was observed by this Court that further investigation is not altogether ruled out merely because cognisance has been taken by the court. When defective investigation comes to light during course of trial, it may be cured by further investigation, if circumstances so permitted. It would ordinarily be desirable and all the more so in this case, that the police should inform the court and seek formal permission to make further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offences found during course of proper investigation is as much relevant, desirable and necessary as an expeditious disposal of the matter by the courts. In view of the aforesaid position in law, if there is necessity for further investigation, the same can certainly be done as prescribed by law. The mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and substantial as well as effective justice. We make it clear that we have not expressed any final opinion on the merits of the case."
12. This Court also deems fit it appropriate to refer to the decision in the case of Vinubhai Haribhai Malaviya (Supra), more particularly, para 38, which is relevant for the present purpose.
"There is no good reason given by the Court in these decisions as to why a Magistrates powers to order further investigation would suddenly cease upon process being issued, and an accused appearing before the Magistrate, while concomitantly, the power of the police to further investigate the offence continues right till the stage the trial commences. Such a view would not accord with the earlier Page 11 of 19 Downloaded on : Fri Mar 12 21:19:07 IST 2021 R/SCR.A/8323/2020 ORDER judgments of this Court, in particular, Sakiri (supra), Samaj Parivartan Samudaya (supra), Vinay Tyagi (supra), and Hardeep Singh (supra); Hardeep Singh (supra) having clearly held that a criminal trial does not begin after cognizance is taken, but only after charges are framed. What is not given any importance at all in the recent judgments of this Court is Article 21 of the Constitution and the fact that the Article demands no less than a fair and just investigation. To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrates nod under Section 173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases mid-way through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156(3) read with Section 156(1), Section 2(h), and Section 173(8) of the CrPC, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding, as was held in Hasanbhai Valibhai Qureshi (supra). Therefore, to the extent that the judgments in Amrutbhai Shambubhai Patel (supra), Athul Rao (supra) and Bikash Ranjan Rout (supra) have held to the contrary, they stand overruled. Needless to add, Randhir Singh Rana v. State (Delhi Administration) (1997) 1 SCC 361 and Reeta Nag v. State of West Bengal and Ors. (2009) 9 SCC 129 also stand overruled."
From the above referred judgments, what becomes clear is that as per law laid down by the Supreme Court in the case of Hasanbhai Valibhai Qureshi that only on the ground that the trial has commenced, the Page 12 of 19 Downloaded on : Fri Mar 12 21:19:07 IST 2021 R/SCR.A/8323/2020 ORDER Magistrate is not precluded from ordering further investigation and whereas the ultimate aim is to do real substantial as well as effective justice and if further investigation would help the Court in achieving the abovementioned aims then the fact of of trial having commenced, would not be an impediment in ordering so. In the case of Vinubhai Haribhai Malaviya (Supra), the Supreme Court had affirmed the decision of Hasanbhai Valibhai Qureshi and had stated that arriving at truth and doing substantial in criminal cases are more important than the consideration of delay in concluding the trial as held in Hasanbhai Valibhai Qureshi.
13. In the case of Pooja Pal Vs. Union of India reported in 2016(3) SCC 135, the Supreme Court has stated thus:
"83. A speedy trial, albeit the essence of the fundamental right to life entrenched in Article 21 of the Constitution of India has a companion in concept in fair trial, both being inalienable constituents of an adjudicative process, to culminate in a judicial decision by a court of law as the final arbiter. There is indeed a qualitative difference between right to speedy trial and fair trial so much so that denial of the former by itself would not be prejudicial to the accused, when pitted against the imperative of fair trial. As fundamentally, justice not only has to be done but also must appear to have been done, the residuary jurisdiction of a court to direct further investigation or reinvestigation by any impartial agency, probe by the State Police notwithstanding, has to be essentially invoked if the statutory agency already in charge of the investigation appears to have been ineffective or is presumed or inferred to be not being able to discharge its functions fairly, meaningfully and fructuously. As the cause of justice has to reign supreme, a court of law cannot reduce itself to be a resigned and a helpless spectator and with the foreseen consequences apparently unjust, in the face of a faulty investigation, meekly complete the formalities to record a foregone conclusion. Justice then would become a casualty. Though a court's satisfaction of want of proper, fair, impartial and effective investigation eroding its credence and reliability is the precondition for a direction for further investigation or reinvestigation, submission of the charge-sheet ipso facto or the pendency of the trial can by no means be a prohibitive impediment. The contextual facts and the attendant circumstances have to be singularly evaluated and analysed to decide the needfulness of further investigation or reinvestigation to unravel the truth and mete out justice to the parties. The prime concern and the endeavour of the court of law is to Page 13 of 19 Downloaded on : Fri Mar 12 21:19:07 IST 2021 R/SCR.A/8323/2020 ORDER secure justice on the basis of true facts which ought to be unearthed through a committed, resolved and a competent investigating agency."
14. Furthermore, this Court deems it fit to rely upon the observations of the Supreme Court in the case of Dharampal (Supra), more particularly, para 21 of the judgment is quoted as under:
"21.We may further elucidate. The power to order fresh, de-novo or re- investigation being vested with the Constitutional Courts, the commencement of a trail and examination of some witnesses cannot be an absolute impediment for exercising the said constitutional power which is meant to ensure a fair and just investigation. It can never be forgotten that as the great ocean has only one test, the test of salt, so does justice has one flavour, the flavour of answering to the distress of the people without any discrimination."
15. This Court also relies upon para 9 of the decision of the Supreme Court in the case of Neetukumar Nagaich Vs. the State of Rajasthan (Supra), which reads as under:
"Normally when an investigation has been concluded and police report submitted under Section 173(2) of the Code, it is only further investigation that can be ordered under Section 173(8) of the Code. But where the constitutional court is satisfied that the investigation has not been conducted in a proper and objective manner, as observed in Kashmeri Devi vs. Delhi Administration, (1988) Suppl. SCC 482, fresh investigation with the help of an independent agency can be considered to secure the ends of justice so that the truth is revealed. The power may also be exercised if the court comes to the conclusion that the investigation has been done in a manner to help someone escape the clutches of the law. In such exceptional circumstances the court may, in order to prevent miscarriage of criminal justice direct de novo investigation as observed in Babubhai vs. State of Gujarat, (2010) 12 SCC 254. A fair investigation is as much a part of a constitutional right guaranteed under Article 21 of the Constitution as a fair trial, without which the trial will naturally not be fair. The observations in this context in Babubhai (supra) are considered relevant at paragraph 45 as follows:
"45. Not only fair trial but fair investigation is also part of constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India. Therefore, investigation must be fair, transparent and judicious as it is the Page 14 of 19 Downloaded on : Fri Mar 12 21:19:07 IST 2021 R/SCR.A/8323/2020 ORDER minimum requirement of rule of law. The investigating agency cannot be permitted to conduct an investigation in a tainted and biased manner. Where non-interference of the court would ultimately result in failure of justice, the court must interfere. In such a situation, it may be in the interest of justice that independent agency chosen by the High Court makes a fresh investigation."
16. From the observations of the Supreme Court referred to and quoted hereinabove the law can be culled out to mean that there is no embargo on the powers of the Magistrate to direct further investigation exercising the powers under Section 173(8) of the CRPC, even after the trial has commenced in appropriate cases. Whereas in so far as Constitutional Courts are concerned, there is no such embargo for directing further investigation or reinvestigation, either by same agency or any other agency.
17. As regards the submissions made by the learned APP that the petitioner himself has come to the Court at a belated stage and therefore, the application for further investigation should not be entertained, this Court is of the considered opinion that in the criminal trial, more particularly, when the trial was being conducted in time limit as per the direction of the Supreme Court, and for that matter, in any criminal trial, when such glaring fact as referred to hereinabove were on record, it was the duty of the trial Court to have ordered suo motu further investigation, since the facts referred to hereinabove are so glaring that the same could not or ought not to have escaped from the attention of the concerned trial Court. Furthermore, the complainant in criminal case, after charge-sheet is filed, has no special role to play than being named as witness. It is the State and prosecution which lead the evidence against the accused and under such circumstances, it was the duty of the State being represented through the Prosecutor to have brought this glaring lacuna to the notice of the concerned Sessions Court, in which duty, they have miserably failed. The Page 15 of 19 Downloaded on : Fri Mar 12 21:19:07 IST 2021 R/SCR.A/8323/2020 ORDER purpose of a fair trial is not only to ensure that the accused gets adequate opportunity to prove his innocence, but at the same time, the victim and / or his family members and the society as a whole should have satisfaction that the investigation leading to the trial was fair and impartial and all other evidence which would have weighed against the accused had been placed before the trial Court and it would be nothing but a travesty of justice that on account of faulty and inept investigation, the accused can manage to secure their acquittal. Thus, in the considered opinion of this Court merely because the complainant submitted application for further investigation at a belated stage, this Court cannot be a silent spectator more particularly when such glaring lacunas are point out. Furthermore, in the considered opinion of this Court, more particularly, when all the aspects referred to hereinabove were already there on record, it was the duty of the learned Trial Court concerned to have sue motu directed further investigation and furthermore, it was also the bounden duty of the Public Prosecutor to have brought these aspects to the notice of the learned Trial Court concerned. Under such circumstances, even though the complainant may have raised his grievance belatedly, yet this Court is of the opinion that merely on the ground of the delay, issues raised by the applicant cannot be ignored.
18. In so far as the submissions that the trial had been conducted in time limit as per the direction of the Supreme Court, in the considered and humble opinion of this Court, the facts as referred to hereinabove as regards the investigation or rather lack of investigation into an important aspect of the alleged crime was not on record before the Supreme Court when such orders had been passed. In so far as concern of the Supreme Court to ensure that the right to speedy trial of the accused is not trammeled upon, in the considered opinion of this Court, the right of the accused for speedy trial and right to have a fair trial can be balanced by Page 16 of 19 Downloaded on : Fri Mar 12 21:19:07 IST 2021 R/SCR.A/8323/2020 ORDER issuing appropriate directions.
19. Thus, in view of the discussing and finding hereinabove, the issue raised in Para 8 above can be answered as thus :
(a) Magistrate in exercise of power under section 173(8) of the Code of Criminal Procedure can direct further investigation even if trial has commenced.
(b) There is no embargo or encumbrance upon the power of the Constitutional Courts to issue directions for further investigation at any stage.
(c) This is a fit case to issue directions for further investigation and whereas by issuing appropriate directions, the intent of the Supreme Court for speedy trial can be ensured.
20. In view of the above observations and findings, this Court deems fit to issue following direction:
1. This application is allowed.
2. In view of the glaring lacunas as observed above, the Superintendent of Police, Morbi, shall direct further investigation with regard to alleged offence under Section 201 of Indian Penal Code on the aspects discussed hereinabove by an officer not below the rank of the Dy. S.P.
3. Further investigation shall be completed as expeditiously as possible and in order to ensure that the order of the Supreme Court is followed in letter and spirit, the further investigation is directed to be completed within a period of Page 17 of 19 Downloaded on : Fri Mar 12 21:19:07 IST 2021 R/SCR.A/8323/2020 ORDER 15 days from the date of receipt of this order and a report as regards the outcome of such further investigation shall be submitted to the Sessions Court, Morbi, where the trial with regard to the Sessions Case No.55 of 2018 is going on. It would be open to the Investigating Officer to apply for extension of time with appropriate reason for such extension.
4. Till the report of further investigation is submitted the Trial of Sessions Case No.55 of 2018 shall remain stayed.
However, the trial should commence immediately, upon submission of report by the Investigating Officer and shall be conducted, if possible on day to day basis.
5. On the basis of the outcome of further investigation, the parties would be at liberty to submit appropriate application for alteration of charge etc. as per the remedies available to them in accordance with law and whereas the learned Sessions Court shall pass appropriate orders as regards such application in accordance with law.
6. The Investigator and Public Prosecutor as well as Sessions Court concerned shall endeavour to ensure that criminal trial in Sessions Case No.55 of 2018 shall not be unduly delayed on account of this direction and whereas the direction by the Supreme Court directing the completion of trial within specified time limits are not in any way affected by direction given by this Court hereinabove and whereas it is incumbent on all concerned to ensure that the directions of the Supreme Page 18 of 19 Downloaded on : Fri Mar 12 21:19:07 IST 2021 R/SCR.A/8323/2020 ORDER Court vide order dated 20.02.2020 in Criminal Appeal No.327 of 20920 are followed both in letter and spirit.
With this observation and direction, present application stands allowed.
(NIKHIL S. KARIEL,J) Y.N. VYAS Page 19 of 19 Downloaded on : Fri Mar 12 21:19:07 IST 2021