Gujarat High Court
Jashiben W/O Rajeshbhai Makwana & vs State Of Gujarat & 2 on 13 April, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/2441/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 2441 of 2017
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JASHIBEN W/O RAJESHBHAI MAKWANA & 1....Applicant(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
NIMISHA J PAREKH, ADVOCATE for the Applicant(s) No. 1-2
MR. HARDIK J JANI, ADVOCATE for the Applicant(s) No. 1-2
MS. PATHAK, ADDL. PUBLIC PROSECUTOR for the RESPONDENT(s) No. 1
NOTICE SERVED BY DS for the RESPONDENT(s) No. 2-3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 13/04/2017
ORAL ORDER
1. By this writ application under Article 226 of the Constitution of India, the writ applicants have prayed for the following reliefs;
(A) Be pleased to admit and allow present petition;
(B) Be pleased to issue appropriate writ, order or direction to quash and set aside the impugned order dated 07.03.2017 passed below Exhibit-16 by the Ld. Addl. Sessions Judge, Court No.4, City Civil and Sessions Court, Ahmedabadand further be pleased to direct the respondent no.2 herein to carry out further investigation in connection with the offence vide C.R. No.I-70 of 2015 registered with Rakhiyal Police Station.
(C ) Be pleased to direct the respondent no.3 herein to entrance the paper of investigation to the respondent Page 1 of 11 HC-NIC Page 1 of 11 Created On Fri Apr 14 01:12:34 IST 2017 R/SCR.A/2441/2017 ORDER no.2 for carrying out further investigation in accordance with law.
(D) Pending admission, hearing and final disposal of this petition be pleased to call for investigation papers from the respondent no.2 herein and further be pleased to stay impugned order dated 07.03.2017 passed below Exhibit-16 by the Ld. Addl. Sessions Judge, Court No.4, City Civil & Sessions Court, Ahmedabad and further be pleased to direct the respondent no.2 herein to carry out further investigation in connection with the offence vide C.R. No.I-70 of 2015 registered with Rakhiyal Police Station.
(E) Be pleased to pass such and further necessary orders in the interest of justice."
2. The bodies of two minor girls by name Trushali and Divya, aged about 16 and 14 years respectively, studying in a school by name Matru Chhaya were fished out on 26th November, 2015. The writ applicant No.1 is the mother of the deceased Trushali and the writ applicant No.2 is the father of the deceased Divya. Divya and Trushali were fast friends. They both were studying in the same school, namely, Matru Chhaya, situated at Asarva, Ahmedabad. Trushali was studying in 12th standard and Divya was studying in 10th standard. On 24th November, 2015, both left for their school. They did not return home on 24th November, 2015. In such circumstances, on the next day, i.e., on 25th November, 2015, the mother of Trushali, i.e, the writ applicant No.1 filed a first information report at the Rakhiyal Police Station, which came to be registered as C.R. No.I-70 of 2015 for the offence punishable under sections 363 and 366 of the Indian Penal Code. In the course of the investigation, the following persons were arrested;
(1) Bhagyesh Karshanbhai Parmar Page 2 of 11 HC-NIC Page 2 of 11 Created On Fri Apr 14 01:12:34 IST 2017 R/SCR.A/2441/2017 ORDER (2) Bharatkumar Kalubhai Solanki (3) Patrik Shivabhai Parmar (4) Ashwinkumar Devjibhai Dodiya (5) Bhavesh Nagarbhai Vaghela
3. At the end of the investigation, the police filed the charge-sheet against all the five persons named above for the offence punishable under sections 363, 366, 305, 306 read with section 114 of the Indian Penal Code and section 11 (4) of the POCSO Act. It is the case of the prosecution that Bhagyesh, i.e., the original accused No.1 had some illicit relations with Divya. Bhagyesh, otherwise, is a married man. In the course of the investigation, the Investigating Agency was able to collect the mobile of Bhagyesh. Bhagyesh had deleted all the information stored in the mobile. The Forensic Science Laboratory, however, was able to retrieve all the data and the retrieved data revealed certain video clips. The video clips would indicate Bhagyesh in a compromising position with Divya.
4. I am informed, at this stage, by Ms. Pathak, the learned APP appearing for the State that keeping in mind the video clips, the Investigating Officer has filed a report before the court concerned to add section 376 of the Indian Penal Code. The investigation revealed that Bhagyesh, in his car, owned by his father, had picked up both the deceased on 24th November, 2015. Thus, both the deceased were last seen in the company of Bhagyesh. Thereafter, on 26th November, 2015, the bodies of both the deceased were fished out from the Sabarmati river.
5. Mr. Jani, the learned counsel appearing for the applicants Page 3 of 11 HC-NIC Page 3 of 11 Created On Fri Apr 14 01:12:34 IST 2017 R/SCR.A/2441/2017 ORDER vehemently submitted that although the investigation has been completed and the charge-sheet is filed, yet the matter requires further investigation so as to rule out the possibility of homicidal death. According to Mr. Jani, the case is one of rape and murder. He submitted that the father of the main accused, namely, Bhagyesh, at one point of time, had offered Rs.10 Lac to the writ applicant No.1 to keep her mouth shut and not to initiate any proceedings. As the writ applicant No.1 did not entertain the father of the main accused, the father is alleged to have threatened the writ applicant No.1 and told her that he would spend the same amount to see that his son gets exonerated of all the charges. According to Mr. Jani, it is a fit case, wherein this Court should order the further investigation by any other higher agency.
6. On the other hand, this writ application has been vehemently opposed by Ms. Pathak, the learned APP appearing for the State. According to Ms. Pathak, the learned APP, the Investigating Officer tried his best to collect all the necessary materials, and at the end of the investigation, thought fit to file the charge-sheet for the offence punishable under sections 305, 306,363 366 read with section 114 of the Indian Penal Code and also section 11(4) of the POCSO Act.
7. Ms. Pathak further points out that the Investigating Officer is also of the view that section 376 of the IPC should be added.
8. According to Ms. Pathak, the learned APP, the case on hand is one of suicide. There is no materials on record to even remotely indicate that the two girls were raped and, thereafter, Page 4 of 11 HC-NIC Page 4 of 11 Created On Fri Apr 14 01:12:34 IST 2017 R/SCR.A/2441/2017 ORDER murdered. Ms. Pathak has placed reliance on the postmortem reports of both the deceased and other papers of the investigation.
9. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether I should order further investigation in the matter so as to once again confirm whether the case is one of homicidal death or suicide.
10. Article 21 of the Constitution of India guarantees fair trial. The fair trial is impossible if there is no fair investigation. In order to be a fair investigation, the investigation must be conducted thoroughly, without bias or prejudice, without any ulterior motive and every fact, surfacing during the course of the investigation, which may have a bearing on the outcome of the investigation and, eventually, on the trial, must be recorded contemporaneously by the Investigating Officer at the time of investigation.
11. Let me clarify, at this stage, that there are no allegations levelled against the Investigating Officer. It is no one's case that the investigation has been carried out with bias or any ulterior motive or with any prejudice. The endevour, on the part of this Court, is to ensure that the investigation has proceeded in the right direction. The crime, which has been brought to my notice is a very serious crime. Two young girls, aged 16 and 14 years respectively, lost their lives. The materials, which have been collected, is also quite shocking. Prima facie, it appears that all the accused persons, together, are responsible for the death of two minor girls in one way or Page 5 of 11 HC-NIC Page 5 of 11 Created On Fri Apr 14 01:12:34 IST 2017 R/SCR.A/2441/2017 ORDER the other. A manipulated investigation or an investigation, which is motivated, cannot lead to a fair trial. Necessary, therefore, it is that the Courts are vigilant, for, it is as much the duty of the Court commencing from the level of the Judicial Magistrate to ensure that an investigation conducted is proper and fair as it is the duty of the Investigating Officer to ensure that an investigation conducted is proper and fair. A fair investigation would include a complete investigation. A complete investigation would mean an investigation, which looks into all the aspects of an accusation, be it in favour of the accused or against him.
12. Article 21, undoubtedly, vests in every accused the right to demand a fair trial. This right, which is fundamental in nature, casts a corresponding duty, on the part of the State, to ensure a fair trial. If the State is to ensure a fair trial, it must ensure a fair investigation. Logically extended, this would mean that every victim of offence has the right to demand a fair trial meaning thereby that he or she has the right to demand that the State discharges its Constitutional obligation to conduct a fair investigation so that the investigation culminates into fair trial. The State has, therefore, the duty to ensure that every investigation, conducted by its chosen agency, is not motivated, reckless and that the Investigating Officer acts in due obedience to law. It is only when the State ensures that the investigation is fair, can it (the State) be able to say, when questioned, that the trial conducted was a fair trial. Article 21, therefore, does not vest in only an accused the right to demand fair trial, but it also vests an equally important right, fundamental in nature, in the victim, to demand a fair trial. Article 21 does not, thus, confer fundamental right on the Page 6 of 11 HC-NIC Page 6 of 11 Created On Fri Apr 14 01:12:34 IST 2017 R/SCR.A/2441/2017 ORDER accused alone, but it also confers, on the victim of an offence, the right, fundamental in nature, to demand fair trial. When police registers a case, the State assumes the responsibility of conducting an investigation. Having assumed the responsibility of investigating the truth or veracity of the allegations, which the police receive, the State cannot act, nor can its Investigating agency act, without a sense of impartiality. It is not merely a trial, which has to be impartial. No less important it is that the investigation, too, is impartial. Fairness of trial will carry with it the fairness of investigation and fairness of investigation will carry with it the impartiality in investigation, besides the investigation being efficient, un-biased, not aimed at helping either the prosecution or the defence. In short, an investigation must not suffer from any ulterior motive or hidden agenda to either help a person or harm a person. This is the principle, which Article 21 of the Constitution of India, read with Article 14 thereof, enshrines, when we say that our Constitution guarantees fair trial.
13. In the memo of the writ application, the following has been averred;
(A) Because, the investigating officer was reluctant to make investigation of alleged offence and he had arrested the accused persons after five months from FIR. Surprisingly, the investigating officer did not ask remand of the accused and they were out rightly sent to judicial custody. The custodial interrogation of the accused could not be done at the hands of local police.
(B) Because, the FIR was not registered as per the
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version of first informant and no proper investigation was made in right direction.
(C ) Because, inspite of information being furnished to the investigating officer by the first informant that someone had called from cell no.9512714917 to the first informant by posing himself as Hitesh Parmar having full information of commission of offence and possessing necessary evidence of crime alleged to have been committed by the accused persons.
(D) Because, the mobile handset of the accused got recovered and they were sent for examination and verification before the FSL. Importantly, the report of FSL, revealed the fact to establish or link the commission of crime with the accused. Despite aforesaid piece of evidence in form of mobile data which was deleted by the accused from their handset but the same being restored and examined by the FSL. However, there is no investigation by the IO. The investigation done so far, is bias and favourable to accused and it is apparently loose to give benefit to the accused.
(E) Because, the body of deceased girls were found from river of Sabarmati on dated 26.11.2015. The body of deceased are having injury and blood marks. Interestingly, the body of deceased girls though found from river, it did not swell at all. However, the school uniform of deceased girl was found shreddy and having marks of rub/hale. This all circumstances appearing on the body of deceased creates reasonable apprehension of Page 8 of 11 HC-NIC Page 8 of 11 Created On Fri Apr 14 01:12:34 IST 2017 R/SCR.A/2441/2017 ORDER they being killed brutally.
(F) Because, the first informant had made representation before the higher authorities pointing bias, tardy and defective investigation at the hands of local police. Though, no step was taken nor any heed was paid to such representations. As a result, the first informant was denied of her right of fair, just and impartial investigation guaranteed by Article 21 of the Constitution of India.
(G) Because, apparently and prima facie a case of rape and murder has been converted to suicide by the local police. The local police have failed to collect evidences and also failed to investigate the offence in right perception.
(H) Because, it came on record that the deceased girl constantly found to have been in contact on mobile phone with the accused till they disappeared. The said fact found fortify in examination report of FSL regarding CDR. Therefore, the involvement of the accused and possibility of commission of offence as alleged under Sections 376, 302 and 120(B) of IPC cannot be ruled out. There is no investigation by the local police in that regard even after FSL report.
(I) Because, the overall circumstances are pointing fingers towards the commission of offence alleged under sections 376, 302 and 120(B) of IPC and the needle of suspicion is raised against the accused for the active Page 9 of 11 HC-NIC Page 9 of 11 Created On Fri Apr 14 01:12:34 IST 2017 R/SCR.A/2441/2017 ORDER participation and involvement in the alleged crime.
14. It appears that the writ applicant herein preferred an application Exh.16 before the learned Addl. Sessions Judge, Court No.4, City Civil and Sessions Court, Ahmedabad for further investigation. The law as is now settled, such application was not maintainable and, therefore, nothing is wrong if such application was rejected by the Trial Court. The Trial Court, at the post cognizance stage, has no power or jurisdiction to order further investigation under section 173(8) of the Cr.P.C. Of course, it is always open for the police to undertake further investigation, if necessary. All that is necessary is to seek formal permission of the court concerned.
15. Having regard to the materials on record, I direct the State CID Crime to undertake the further investigation in the matter. The DIG, State CID shall appoint a competent officer to undertake the further investigation in accordance with law. The officer concerned shall keep in mind the averments made in this writ application and carry out the investigation to ascertain whether the case is one of homicidal death or otherwise. At the end of such further investigation, the officer concerned shall file an appropriate report before the Trial Court.
16. With the above, this writ application is disposed of. A copy of this order be provided to Ms. Pathak, the learned APP, for its onward communication.
Direct service is permitted.
(J.B.PARDIWALA, J.)
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Vahid
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