Gujarat High Court
Rekhaben Satishbhai Jain vs State Of Gujarat on 24 March, 2025
NEUTRAL CITATION
R/SCR.A/2383/2025 JUDGMENT DATED: 24/03/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO.2383 of 2025
(QUASHING)
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/-
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Approved for Reporting Yes No
- √
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REKHABEN SATISHBHAI JAIN
Versus
STATE OF GUJARAT
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Appearance:
MR HRIDAY BUCH with MR DHRUV TOLIYA(9249) for the
Applicant(s) No. 1
MS MEGHA CHITALIYA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 24/03/2025
ORAL JUDGMENT
1. Rule. Learned APP waives service of notice of rule for respondent - State of Gujarat.
2. By filing instant petition under Article 226 of the Constitution of India read with Section 528 of the Bharatiya Nagarik Suraksh Sanhita, 2023 ("BNSS" for short"), the petitioner has prayed for quashment of the order dated 09.01.2025 passed by the learned Judge, Court No.3, City Civil & Sessions Court, Ahmedabad City in Revision Application No.227/2024 as well as the order dated 04.06.2024 passed by the learned Additional Chief Metropolitan Magistrate, Court No.2, Ahmedabad in Page 1 of 14 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Mar 25 2025 Downloaded on : Tue Mar 25 22:37:46 IST 2025 NEUTRAL CITATION R/SCR.A/2383/2025 JUDGMENT DATED: 24/03/2025 undefined Criminal Misc. Application No.102387/2023, whereby the application preferred by the petitioner under Section 173(8) of the Code of Criminal Procedure, 1973 ("CrPC" for short) came to be rejected.
3. Heard learned advocate, Mr. Hridy Buch assisted by learned advocate, Mr. Dhruv Tolia for the petitioner and learned APP Ms. Megha Chitaliya for the respondent.
4. Learned advocate submitted that the petitioner is the complainant of FIR being C.R. No.11191010230307/2023 registered with Madhavpura Police Station, Ahmedabad City for the offences under Sections 406 and 420 of the Indian Penal Code against the accused named therein and after registration of the said FIR, the investigation was put into motion and at the end of investigation, the chargesheet came to be filed before the court concerned. He submitted that however when the petitioner had gone through the chargesheet papers and verified the same, she came to know that there was certain glaring mistake committed by the concerned IO at the time of carrying out investigation as some important documents have not been collected and placed on record, therefore, the petitioner submitted an application under Section 173(8) of the CrPC for further investigation, however, the said application was not entertained by the concerned court, therefore, revision application was preferred before the learned Sessions Court, which Page 2 of 14 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Mar 25 2025 Downloaded on : Tue Mar 25 22:37:46 IST 2025 NEUTRAL CITATION R/SCR.A/2383/2025 JUDGMENT DATED: 24/03/2025 undefined was also rejected, therefore, the present petition is preferred.
5. Learned advocate submitted that the husband of the petitioner was the Proprietor of "Puja Enterprise", whereas the accused was Proprietor of "Kailash Metal Works" and the bank accounts of both the proprietorship were maintained by the accused. He submitted that however the husband of the petitioner passed away on 17.05.2021 and after the sad demise of her husband, the petitioner inquired about the bank details from the accused, who in turn had clarified that the accused was managing the accounts of both the proprietorship but there re no money receivable to the applicant, which creates doubt in the mind of the petitioner, therefore, she met the Chartered Account of "Puja Enterprise" and requested to provide details of the firm and while making inquiry, it was reveled that the accused was using Bank Account No.912020058049026 maintained with Axis Bank without the consent of the applicant, wherein she was made nominee. He submitted that purpose of filing such application for further investigation was just to known,
(i) What is the modus operandi of the accused because even after death of the husband of the petitioner, the accused was having control over the bank accounts functioning in the name of "Puja Enterprise"?
(ii) Whether there are any other individuals, Page 3 of 14 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Mar 25 2025 Downloaded on : Tue Mar 25 22:37:46 IST 2025 NEUTRAL CITATION R/SCR.A/2383/2025 JUDGMENT DATED: 24/03/2025 undefined who have assisted the accused in the commission of crime?
(iii) Whether there any other individuals, who have benefited from the commission of crime?
(iv) Whether there any bank employees, who are involved in aiding, assisting and facilitating the accused in the commission of crime? And
(v) Determine the mobile number and IP address of the device used to execute the transaction.
6. Referring to the aforesaid aspects, learned advocate submitted that reasons and grounds mentioned in the application are not properly considered and wrongly rejected the said application by the concerned court and the said aspect has not been properly considered by the learned Sessions Court in the revision application, which resulted into great injustice to the petitioner, who is the victim of the criminal act committed by the accused. He submitted that while submitting application, it was specifically pointed out that after the death of the husband of the petitioner, the accused continued with the operation of bank account as also GST number allocated to "Puja Enterprise" and thereby entered into several transactions, which resulted into issuance of notice by the GST Department. Not only that, it was also pointed out Page 4 of 14 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Mar 25 2025 Downloaded on : Tue Mar 25 22:37:46 IST 2025 NEUTRAL CITATION R/SCR.A/2383/2025 JUDGMENT DATED: 24/03/2025 undefined that the accused has forged the signature and using it for his personal use. He submitted that though all facts have been pointed out, both the learned Courts have not properly considered it and wrongly rejected the application preferred by the petitioner.
7. Learned advocate has referred to the observations made by the learned Sessions Judge while rejecting revision application and submitted that one of the reasons assigned by the learned Sessions Judge for rejecting the said application is that the plea of the accused has been recorded on 04.01.2024, whereas the order rejecting an application for further investigation is dated 04.06.2024, therefore once the plea is recorded and trial has proceeded further then, further investigation cannot be ordered. In support of the aforesaid observation, learned advocate has placed reliance upon the order dated 28.01.2025 passed by the Hon'ble Supreme Court in case of Rampal Gautam & Ors. Vs. The State by Mahadevapura Police Station, Mahadevpura, Bengaluri & Anr. delivered in Criminal Appeal arising out of SLP (Criminal) No.7968/2016. It is, therefore, urged that considering the above facts, the present petition may be allowed.
8. On the other hand, learned APP Ms. Chitaliya appearing for the respondent has opposed the present petition and submitted that the orders passed by the learned Courts while rejecting the Page 5 of 14 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Mar 25 2025 Downloaded on : Tue Mar 25 22:37:46 IST 2025 NEUTRAL CITATION R/SCR.A/2383/2025 JUDGMENT DATED: 24/03/2025 undefined application preferred by the petitioner for further investigation are just and proper and same do not require any interference. She submitted that at the time of carrying out investigation, the concerned Investigating Officer has collected all required materials and documents, which are brought on record, therefore, there is no requirement of further investigation at this stage. It is, therefore, urged that the present petition may be rejected.
9. Having heard learned advocates for the parties and having gone through the material available on record, it is found out that the petitioner is seeking further investigation in connection with an FIR lodged by her in view of the fact that at the time of carrying out investigation after registration of the FIR, some crucial aspects are left out, which are required to be brought on record for the just and fair trial, however though the said aspects have been pointed out while submitting application, it has not been considered and wrongly turned down the request of the petitioner.
10. If the facts of the case are examined, in that event, it is found out that it is the specific case of the petitioner right from the beginning that the accused have committed cheating and criminal breach of trust by using the GST number as also by functioning with the bank account in the name of "Puja Enterprise" maintained with Axis Page 6 of 14 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Mar 25 2025 Downloaded on : Tue Mar 25 22:37:46 IST 2025 NEUTRAL CITATION R/SCR.A/2383/2025 JUDGMENT DATED: 24/03/2025 undefined Bank behind the back of the petitioner and/or her husband and when the petitioner had paid visit at the office of Chartered Accountant, the said fact came to her notice and as soon as she came to know about the said fact, entire facts have been pointed out to the concerned IO, however while carrying out investigation, those documents have not been collected by the concerned IO, otherwise, picture would have been different and real truth would have come on record. Thus in view of the above facts, filing an application under Section 173(8) of the CrPC for further investigation was necessitated, however, the said aspects, though pointed out, have not been properly considered.
11. As contended by learned advocate for the petitioner, one of the reasons for rejection of application by the learned Magistrate is that the plea of the accused has been recorded, therefore, it is not desirable to pass an order of further investigation. However at this stage, I would like to place reliance upon the decision of the Hon'ble Supreme Court in case of Rampal Gautam (supra), upon which reliance has been placed by learned advocate for the petitioner, wherein the Hon'ble Supreme Court has considered the similar issue of further investigation, that too, after filing of the chargesheet and commencement of the trial and allowed the further investigation. Paragraph No.12 of the said decision reads as under, "12. At the outset, we may record that a direction Page 7 of 14 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Mar 25 2025 Downloaded on : Tue Mar 25 22:37:46 IST 2025 NEUTRAL CITATION R/SCR.A/2383/2025 JUDGMENT DATED: 24/03/2025 undefined to conduct further investigation even after filing of the chargesheet and commencement of the trial is permissible in law as has been held by a catena of judgments of this Court. Reference in this regard may be made to Hasanbhai Valibhai Qureshi v. State of Gujarat and Others wherein, this Court observed that the prime consideration for directing further investigation is to arrive at the truth and to do real substantial justice. The Court further observed that further investigation and re-investigation stand altogether on a different footing. Even de hors any direction from the Court, it is open to the police to conduct a proper investigation notwithstanding the fact that the Court has already taken cognizance on the strength of a police report submitted earlier. However, a caveat was added that before directing such investigation, the Court or the concerned police officer has to apply mind to the material available on record and arrive at a satisfaction that investigation of such allegations is necessary for the just decision of the case."
12. At this stage, I would like to place reliance upon the decision of the Hon'ble Supreme Court in case of State of West Bengal & Ors. Vs. Committee for protection of Democratic Rights, West Bengal & Ors., reported in (2010) 3 SCC 571, wherein the Hon'ble Supreme Court in para 68 has observed and Page 8 of 14 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Mar 25 2025 Downloaded on : Tue Mar 25 22:37:46 IST 2025 NEUTRAL CITATION R/SCR.A/2383/2025 JUDGMENT DATED: 24/03/2025 undefined held as under:
"68. Thus, having examined the rival contentions in the context of the Constitutional Scheme, we conclude as follows:
(i) The fundamental rights, enshrined in Part III of the Constitution, are inherent and cannot be extinguished by any Constitutional or Statutory provision.
Any law that abrogates or abridges such rights would be violative of the basic structure doctrine. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account in determining whether or not it destroys the basic structure.
(ii) Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law.
The said Article in its broad
application not only takes within its
fold enforcement of the rights of an
accused but also the rights of the
victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain situations even a witness to the crime may seek for and shall be granted protection by the State.
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(iii) In view of the constitutional scheme and the jurisdiction conferred on this Court under Article 32 and on the High Courts under Article 226 of the Constitution the power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the powers of the Constitutional Courts with regard to the enforcement of fundamental rights. As a matter of fact, such a power is essential to give practicable content to the objectives of the Constitution embodied in Part III and other parts of the Constitution. Moreover, in a federal constitution, the distribution of legislative powers between the Parliament and the State Legislature involves limitation on legislative powers and, therefore, this requires an authority other than the Parliament to ascertain whether such limitations are transgressed. Judicial review acts as the final arbiter not only to give effect to the distribution of legislative powers between the Parliament and the State Legislatures, it is also necessary to show any transgression by each entity. Therefore, to borrow the words of Lord Steyn, judicial review is justified by combination of "the principles of separation of powers, rule of law, the principle of constitutionality and the Page 10 of 14 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Mar 25 2025 Downloaded on : Tue Mar 25 22:37:46 IST 2025 NEUTRAL CITATION R/SCR.A/2383/2025 JUDGMENT DATED: 24/03/2025 undefined reach of judicial review".
(iv) If the federal structure is violated by any legislative action, the Constitution takes care to protect the federal structure by ensuring that Courts act as guardians and interpreters of the Constitution and provide remedy under Articles 32 and 226, whenever there is an attempted violation. In the circumstances, any direction by the Supreme Court or the High Court in exercise of power under Article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure.
(v) Restriction on the Parliament by the Constitution and restriction on the Executive by the Parliament under an enactment, do not amount to restriction on the power of the Judiciary under Article 32 and 226 of the Constitution.
(vi) If in terms of Entry 2 of List II of The Seventh Schedule on the one hand and Entry 2A and Entry 80 of List I on the other, an investigation by another agency is permissible subject to grant of consent by the State concerned, there is no reason as to why, in an exceptional situation, court would be precluded from exercising the same power which the Union could exercise in terms of the provisions of the Statute.
In our opinion, exercise of such Page 11 of 14 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Mar 25 2025 Downloaded on : Tue Mar 25 22:37:46 IST 2025 NEUTRAL CITATION R/SCR.A/2383/2025 JUDGMENT DATED: 24/03/2025 undefined
power by the constitutional courts would not violate the doctrine of separation of powers. In fact, if in such a situation the court fails to grant relief, it would be failing in its constitutional duty.
(vii) When the Special Police Act itself provides that subject to the consent by the State, the CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State Police, the court can also exercise its constitutional power of judicial review and direct the CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a Restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of The Union, cannot be read as restriction on the powers of the Constitutional Courts. Therefore, exercise of power of judicial review by the High Court, in our opinion, would not amount to infringement of either the doctrine of separation of power or the federal structure.
13. Now, considering the facts of the case on hand, it appears that investigation in the present case Page 12 of 14 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Mar 25 2025 Downloaded on : Tue Mar 25 22:37:46 IST 2025 NEUTRAL CITATION R/SCR.A/2383/2025 JUDGMENT DATED: 24/03/2025 undefined cannot be said to have been conducted in a proper direction as the concerned Investigating Officer has failed to carry out fair investigation and the relevant documentary evidences are not seized or recovered though some relevant facts have been pointed out by the petitioner at the time of registering FIR itself, therefore, the benefit of such a faulty and/or half-hearted investigation by the concerned Investigating Officer is likely to give advantage to the accused persons. It is also required to be noted that merely filing of the charge-sheet is not sufficient but the endeavour of the concerned Investigating Officer should be to find out the real truth so that the real accused persons are convicted and punished. Further as observed by the Hon'ble Supreme Court in catena of decisions, as such the Investigating Officer is the master of investigation and nobody can interfere in his duty of investigation, however in the present case on hand, unfortunately the Investigating Officer has failed to perform his duty and failed to investigate the case thoroughly and in proper manner. Thus, in the totality of facts and circumstances of the case, it appears that learned Magistrate as well as learned Sessions Judge have committed an error apparent on the face of it in rejecting the application preferred by the petitioner, which requires interference at the hands of this Court.
14. In the result, the present petition succeeds and Page 13 of 14 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Mar 25 2025 Downloaded on : Tue Mar 25 22:37:46 IST 2025 NEUTRAL CITATION R/SCR.A/2383/2025 JUDGMENT DATED: 24/03/2025 undefined is hereby allowed. The impugned order dated 09.01.2025 passed by the learned Judge, Court No.3, City Civil & Sessions Court, Ahmedabad City in Revision Application No.227/2024 as well as the order dated 04.06.2024 passed by the learned Additional Chief Metropolitan Magistrate, Court No.2, Ahmedabad in Criminal Misc. Application No.102387/2023 are hereby quashed and set aside. The application, Exh.3 preferred by the petitioner in Criminal Case No.102387/2023 is hereby allowed as prayed for. Accordingly, the concerned Investigating Officer of the FIR being C.R. No.11191010230307/2023 registered with Madahvpura Police Station, Ahmedabad City is hereby directed to carry out further investigation taking into consideration the averments made in the application, Exh.3 as expeditiously as possible in exercise of powers under Section 173(8) of the CrPC within a period of three months from the date of receipt of this order and submit report before the court of learned Additional Chief Metropolitan Magistrate, Court No.2, Aahmedabad in Criminal Case No.102387/2023 and thereafter the learned Magistrate to proceed further with the trial in accordance with law and on merits.
15. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
Sd/-
(DIVYESH A. JOSHI, J.) Gautam Page 14 of 14 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Mar 25 2025 Downloaded on : Tue Mar 25 22:37:46 IST 2025