Gujarat High Court
Mohit Prafulbhai Pathak vs State Of Gujarat on 21 August, 2019
Author: S.H.Vora
Bench: S.H.Vora
R/SCR.A/6245/2019 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 6245 of 2019
With
CRIMINAL MISC.APPLICATION (FOR JOINING PARTY) NO. 1 of 2019
In
R/SPECIAL CRIMINAL APPLICATION NO. 6245 of 2019
With
R/CRIMINAL MISC.APPLICATION NO. 13389 of 2019
With
R/SPECIAL CRIMINAL APPLICATION NO. 6775 of 2019
With
R/SPECIAL CRIMINAL APPLICATION NO. 6825 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.H.VORA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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MOHIT PRAFULBHAI PATHAK
Versus
STATE OF GUJARAT
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Appearance:
Special Criminal Application No.6245/2019
MR. BHADRISH S RAJU(6676) for the Applicant(s) No. 1
MR MITESH AMIN, PP with MS SHRUTI PATHAK, ADDL. PUBLIC
PROSECUTOR(2) for the Respondent(s) No. 1
Criminal Misc. Application No.1/2019
MR IH SYED, SR. ADVOCATE with MR CHIRAG UPADHYAY for the
Applicant(s) No. 1
MR MITESH AMIN, PP with MS SHRUTI PATHAK, ADDL. PUBLIC
Page 1 of 8
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R/SCR.A/6245/2019 CAV JUDGMENT
PROSECUTOR(2) for the Respondent(s) No. 1
Special Criminal Application No.6775/2019
MR YS LAKHANI, SR. ADVOCATE with MR ASHVIN M PANCHAL for the
Applicant(s) No. 1
MR MITESH AMIN, PP with MS SHRUTI PATHAK, ADDL. PUBLIC
PROSECUTOR(2) for the Respondent(s) No. 1
Special Criminal Application No.6825/2019
MR YN OZA, SR. ADVOCATE with MR JIGAR G GADHAVI for the
Applicant(s) No. 1
MR MITESH AMIN, PP with MS SHRUTI PATHAK, ADDL. PUBLIC
PROSECUTOR(2) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.H.VORA
Date : 21/08/2019
CAV JUDGMENT
1. With the consent of learned advocates appearing for the respective parties, present petitions are taken up for final disposal today. As common questions of law and fact arise in this group of petitions, the same are being disposed of by this common judgment.
2. The group of present petitions is directed against the order passed by the learned 2nd Addl. Chief Judicial Magistrate, Navsari dated 28.5.2019, whereby the learned trial Judge added the offences punishable u/s 384, 385, 389 and 120(B) of the IPC as well as report seeking addition of offences punishable u/s 193, 195, 199 and 211 of the IPC in connection with FIR being I - C.R. No.42 of 2019 dated 4.4.2019 lodged with Navsari Rural Police Station for the offences punishable u/s 376(D), 328, 406, 420, 354A, 506(2) and 114 of the IPC.
Page 2 of 8 Downloaded on : Thu Aug 22 02:09:11 IST 2019 R/SCR.A/6245/2019 CAV JUDGMENT3. The facts leading to the reports dated 25.5.2019 and 27.5.2019 and facts of FIR being I - C.R. No.42 of 2019, after filtering unnecessary and irrelevant details, necessary for the disposal of present petitions can be stated thus:-
3.1 The FIR being I - C.R. No.42 of 2019 came to be lodged at the instance of the complainant with Mahila Police Station, Ahmedabad (West), Ahmedabad city on 1.4.2019, which subsequently transferred to the Navsari Rural Police Station on 4.4.2019 culminating into FIR being I - C.R. No.42 of 2019 registered against the accused persons for the offences punishable u/s 376(D), 328, 406, 420, 354A, 506(2) and 114 of the IPC. It is to be noted here that the petitioner of Special Criminal Application Nos.6825 of 2019 and 6245 of 2019 are practising advocates. Pending investigation, it appears that two meetings were held at Ahmedabad and case came to be settled between the parties for an amount of Rs.71 lakh on condition that the complainant would affirm an affidavit putting an end to the prosecution. The said amount eventually was recovered by the investigating officer. On 17.5.2019 and 20.5.2019, original accused Nos.1 to 4 named in the FIR have sworn on affidavit, inter alia, stating that the complainant has settled the matter and has filed false FIR and they further consented for Narco Analysis test and Lie Detector test. On 21.5.2019, one Mr. Hitesh Ramani approached the investigating agency with certain materials to show that the complainant had settled the matter and filed false complaint with a view to extort money. On the basis of information provided to the investigating agency by Mr. Hitesh Ramani, different teams were sent to to the house of the complainant and also the petitioners. Pending Page 3 of 8 Downloaded on : Thu Aug 22 02:09:11 IST 2019 R/SCR.A/6245/2019 CAV JUDGMENT investigation, concerned investigating officer preferred an application dated 25.5.2019 and 27.5.2019 for addition of the offences, as aforesaid. It is the said reports and orders passed by the learned Magistrate accepting the reports to add the offences, as aforesaid, is challenged before this Court.
4. Upon hearing learned Senior Counsel appearing for the respective petitioners, the question, which calls for consideration of this Court, is whether order dated 28.5.2019 passed by the learned Magistrate is illegal and against settled provisions of section 195 of the Code of Criminal Procedure, 1973 (for short "the Code") and further, before accepting the reports dated 25.5.2019 and 27.5.2019, the accused persons, more particularly, petitioners are required to be heard in view of the fact that FIR being I - C.R. No.42 of 2019 being false complaint, investigation stands closed.
5. In response to the petitions, the respondent - Dy. S.P., Navsari filed affidavit-in-reply in order to oppose the prayer made by the petitioners in present proceedings. According to the respondent State, during the course of investigation of FIR registered u/s 376 and other sections of the IPC, concerned investigating officer recorded statements of the complainant and other witnesses and during the course of investigation of the FIR of alleged rape, it came on record that the allegation of alleged gang rape made was with a view to extort money from the accused persons and the FIR for the alleged rape was part of pre-planned conspiracy hatched by the prosecutrix as well as co-conspirators including the present petitioners. The mobile phone of the prosecutrix was seized by way of panchnama and sent to the FSL. The mobile Page 4 of 8 Downloaded on : Thu Aug 22 02:09:11 IST 2019 R/SCR.A/6245/2019 CAV JUDGMENT phone contained call recordings which were recorded in the mobile phone of the prosecutrix while the prosecutrix made several communications with the co-conspirators. The investigating agency, during the course of investigation, intercepted the calls of the prosecutrix from April 2019 to May 2019.
6. Mr. Mitesh Amin, learned Public Prosecutor, during the course of hearing, placed on record certain mobile phone conversation for perusal of this Court, which were intercepted by the investigating agency. Since, the investigating agency found that the FIR being I - C.R. No.42 of 2019 registered with Navsari Rural Police Station was filed only with a view to extort money from the accused persons and based on evidence gathered by the investigating agency, more particularly, recovery of Rs.71 lakh, reports dated 25.5.2019 and 27.5.2019 for addition of offences punishable under the aforementioned sections were filed before the competent Court. According to the respondent State, provisions of section 195 of the Code would not come into play since no cognizance of the offence has been taken so far by the competent Court nor the investigating agency has filed closure report so far initial offences registered being I - C.R. No.42 of 2019 are concerned. Lastly, it is the case of the respondent State that the petitioners are not required to be heard at the time of hearing of reports dated 25.5.2019 and 27.5.2019 and therefore, urged to reject the petitions.
7. Before the submissions made at bar, both on facts and legal principles, are considered on its merits, it is necessary to keep in mind that the learned Magistrate has not taken Page 5 of 8 Downloaded on : Thu Aug 22 02:09:11 IST 2019 R/SCR.A/6245/2019 CAV JUDGMENT cognizance of the offence till date and further, the investigating agency has not filed any closure report before learned Magistrate since, there is no any occasion on part of the investigating agency to file "C" summary report or there is no any stage to ventilate grievance on the part of either the complainant or the petitioners or original accused persons. At the same time, no any order taking cognizance of the offences punishable u/s 193 of the IPC on the basis of report dated 27.5.2019 has been passed by the learned Magistrate. In nutshell, when the offences registered vide FIR being I - C.R. No.42 of 2019 is at the stage of investigation, reports dated 25.5.2019 and 27.5.2019 came to be filed by the investigating agency for addition of aforementioned offences qua the petitioners and others. In that view of factual facts surface on record, I have perused the case law cited by learned Senior Counsel Mr. YN Oza of this Court in the case of Jashvantlal Ishwarlal Barot Vs. Dy.SP, Mehsana rendered in Special Criminal Application No.1641 of 2007, Jamilaben Hanif Manek Vs. Sama Jusab Jasraya rendered in Criminal Revision Application No.506 of 2011, Jagdish Nathabhai Solanki Vs. State of Gujarat and others rendered in Special Criminal Application No.381 of 2007 and in case of Mr. Narendra Kumar Srivastava Vs. State of Bihar and others reported in (2019) 3 SCC 318. Bearing in mind aforesaid factual position of the case, now, it is right time to take up present petitions on its merits.
8. The investigating agency placed on record reports dated 25.5.2019 and 27.5.2019 pending hearing of the FIR being I - C.R. No.42 of 2019 and made a request to add certain sections of the offences. Thus, the matter is at the stage of Page 6 of 8 Downloaded on : Thu Aug 22 02:09:11 IST 2019 R/SCR.A/6245/2019 CAV JUDGMENT investigation of all the offences and thus, no final report, as provided u/s 169 or 173 are before the learned Magistrate. Therefore, the accused persons, more particularly, the petitioners having no locus or required to be heard till the charge sheet is filed. Even, the learned Magistrate is not required to apply its mind to consider as to whether any case is made out against the petitioners/accused persons. So far as decisions cited by learned Senior Counsel Mr. YN Oza in case of Jashvantlal Ishwarlal Barot (supra), Jamilaben Hanif Manek (supra) and Jagdish Nathabhai Solanki (supra), since the matter is at the stage of investigation, the said decisions cited at bar would not be applicable to the facts of the case, as the matter is at the stage of investigation and no reports as provided u/s 169 or 173 of the Code are before the learned Magistrate as were the facts of the case cited at bar.
9. Now, coming to the question whether bar u/s 195 of the Code would come into play or not. Section 195(1)(b)(i) refers to offences of false evidence and offences against public justice while section 195(1)(b)(ii) relates to the offences in respect of documents produced or given in evidence in proceeding in any court. The prosecution can be initiated only by sanction of Court under whose proceedings offence referred to in section 195(1)(b) of the Code was allegedly committed. Similarly, cognizance of offence punishable u/s 193 of the IPC on the basis of private complaint is impermissible. In case on hand, the learned Magistrate has not taken cognizance of the offence, more particularly, based on report dated 27.5.2019 and there is no bar to conduct investigation by the investigating agency for the alleged offences and therefore, provisions of Section 195 of the Code Page 7 of 8 Downloaded on : Thu Aug 22 02:09:11 IST 2019 R/SCR.A/6245/2019 CAV JUDGMENT would not come into operation at all and therefore, reliance on decision by learned Senior Counsel Mr. Oza in case of Mr. Narendra Kumar Srivastava (supra) is misplaced, both on law and facts.
10. The off shot of the above discussion is that there is no bar u/s 195 of the Code to conduct investigation into the alleged offences as per report dated 25.5.2019 and 27.5.2019 and the learned Magistrate is not required to hear the petitioners or any other accused persons at the time of considering reports dated 25.5.2019 and 27.5.2019 and thus, present petitions being devoid of merits, both on law and facts, deserve only fate of rejection and accordingly, it is rejected. Notice discharged.
11. In view of disposal of main petitions, Criminal Misc. Application No.1 of 2019 for joining party does not survive and the same stands disposed of accordingly.
(S.H.VORA, J) SHEKHAR P. BARVE Page 8 of 8 Downloaded on : Thu Aug 22 02:09:11 IST 2019