Gujarat High Court
Ghanshyambhai Jethabhai Patel vs State Of Gujarat & 2 on 1 October, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/3635/2012 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION NO. 3635 of 2012
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GHANSHYAMBHAI JETHABHAI PATEL....Applicant(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MS DHARITRI PANCHOLI, ADVOCATE FOR HL PATEL ADVOCATES,
ADVOCATE for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2 - 3
MS HB PUNANI, ADD. PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 01/10/2015
ORAL ORDER
1. By this writapplication under Article 226 of the Constitution of India, the petitioneroriginal complainant has prayed for the following reliefs: "12(a) The Hon'ble Court may be pleased to issue appropriate writ, order or direction, directing respondent Nos.2 & 3 to submit their chargesheet/final report before the Magistrate concerned within a period of 2 weeks from the date of final disposal of this petition for necessary action to be taken by the concerned Magistrate under the provisions of s.173 read with s.190 of the Code of Criminal Procedure, 1973;
(b) The Hon'ble Court may be pleased to issue appropriate writ, order or direction, directing respondent No.2 and 3 to submit a report before this Honourable Court with regard to the steps taken by them for further investigation as per the order dated 14.2.2012 in Special Criminal Application No.1732 of 2012;
(c) The Hon'ble Court may be pleased to direct respondent No.1 to look into the conduct of the respondent Nos.2 & 3 and take Page 1 of 5 HC-NIC Page 1 of 5 Created On Sun Oct 04 02:07:06 IST 2015 R/SCR.A/3635/2012 ORDER appropriate departmental actions againt them for overreaching and not carrying out the directions issued by the order dated 14.2.2012 in Special Criminal Application No.1732 of 2012;
(d) Pending the admission, hearing and final disposal of this petition, the Hon'ble Court may be pleased to direct any other officer above the rank of DSP to immediately seize and seal the investigation papers of the case so that respondent Nos.2 & 3 are prevented from creating antedated documents/statements/record;
(e) Adinterim relief in terms of para12(d) above may kindly be granted;
(f) Grant such other and further relief/s as may be deemed fit and proper in the interest of justice.
2. In the first round of litigation with regard to the subject matter, one Special Criminal Application No.1732 of 2010 was disposed of by a learned Single Judge vide order dated 14.02.2012 observing as under:
1. Rule. Mr.Raval, learned APP waives service of rule for respondents.
2. Considering the facts and circumstances of the case and with the consent of both the sides, the matter is taken up for final disposal today.
3. The instant application is filed by the petitioner, who is original complainant, challenging the order dated 6.7.2010 passed by learned Addl.Sessions Judge, Mehsana in Criminal Revision Application No.33 of 2010 whereby the aforesaid Criminal Revision Application filed by the petitioner - complainant came to be dismissed and the order dated 21.1.2010 passed by learned Addl.Chief Judicial Magistrate, Mehsana in the matter of Langnaj police station C.R.No.I71 of 2005 granting "A" Summary came to be confirmed.
4. Mr.Vijay Patel, learned advocate for the petitioner submitted that the impugned order passed by the Sessions Court is contrary to law and facts on record. The trial Court granted "A" Summary solely on the ground that one witness, namely, Popatlal is not available and he is abroad. During the course of investigation, the investigating police officer has only to collect evidence to come to the conclusion as to whether the disputed document, bears signature of Popatlal and other persons or not. It is submitted that, if the document, copy of which is annexed at page 100, is considered, the document allegedly came to be Page 2 of 5 HC-NIC Page 2 of 5 Created On Sun Oct 04 02:07:06 IST 2015 R/SCR.A/3635/2012 ORDER signed by Popatlal, Ghanshyambhai (the petitioner - complainant herein) and one Mukeshbhai. The specimen signatures along with the admitted signatures of Ghanshyambhai and Mukeshbhai came to be obtained and certain admitted documents allegedly signed by Popatlal were collected as well as were supplied by the complainant to the investigating police officer and those documents were referred to a Handwriting Expert of the FSL. My attention is drawn to AnnexureJ (page 89), which is a report-cum-opinion of the FSL dated 31.7.2006 wherein so far as Popatlal is concerned, it has been clearly opined by the Handwriting Expert that he did not find any similarities in the signatures. Many dissimilarities in the signature of Popatlal in the disputed documents compared with other documents came to be revealed by the Handwriting Expert.
4.1 Mr.Vijay Patel, learned advocate for the applicant submitted that neither this important piece of evidence, namely, the report of the Handwriting Expert of the Government came to be referred by the trial Court while granting "A" Summary nor in the revision, the same came to be referred by the Sessions Court. It is further submitted that the "A" Summary came to be granted by the trial Court mechanically, as in past "A" Summary was claimed, but the trial Court refused to grant "A" Summary and the investigation was further directed to be carried out u/s.156(3) r/w.Section 173(8) of the Cr.P.C. Thereafter, when again the "A" Summary was claimed, same was claimed on the same grounds, which were assigned by the investigating police officer, while he claimed "A" Summary first in point of time, which came to be turned down. It is, therefore, submitted that the only reason assigned by both the subordinate Courts, namely, nonavailability of witness Popatlal, can never be said to be a ground for granting "A" Summary.
5. Mr.Raval, learned APP for the respondents submitted that in the instant matter, the trial Court granted "A" Summary with specific direction that the investigation should continue. It is, therefore, submitted that unless and until the presence of Popatlal is procured, it would be very difficult for the investigating officer to further go ahead with the investigation.
6. At the outset, the bare perusal of the order passed by the Sessions Court reveals that, in past, investigating police officer claimed "A" Summary on the ground of nonavailability of witness Popatlal. By order dated 9.10.2007, the trial Court refused to grant "A" Summary on that ground and directed the concerned investigating police officer to go ahead with the investigation u/s.156(3) r/w.Section 173(8) of the Cr.P.C. It transpires that thereafter, the investigating police officer again Page 3 of 5 HC-NIC Page 3 of 5 Created On Sun Oct 04 02:07:06 IST 2015 R/SCR.A/3635/2012 ORDER claimed "A" Summary and it has been clearly observed by the Sessions Court that on the 2nd time, "A" Summary was claimed on the same ground, namely, nonavailability of witness Popatlal. Needless to say that second time, "A" Summary was granted not only ignoring the previous order dated 9.10.2007 passed by the trial Court refusing to grant "A" Summary, but the report of Handwriting Expert of the FSL, AnnexureJ dated 31.7.2006. If the trial Court or in turn the Sessions Court had considered the above aspect of the matter, and more particularly, FSL report, AnnexureJ, the trial Court would have refused to grant "A" Summary and would have directed the investigating police officer to go ahead with the investigation in terms of its own earlier order dated 9.10.2007.
7. In above view of the matter, the impugned order dated 6.7.2010 passed by learned Addl.Sessions Judge, Mehsana in Criminal Revision Application No.33 of 2010 confirming the order passed by the trial Court dated 21.1.2010 granting "A" Summary, deserves to be quashed and setaside. It is submitted by learned counsel representing both the sides that at present Dy.S.P., Mehsana is in charge of the investigation and he shall investigate this matter in line of the order passed by the trial Court on dated 9.10.2007. At the same time, it appears to be just and desirable that the investigation should be supervised by District Superintendent of Police, Mehsana.
8. For the foregoing reasons, this application is allowed and the impugned order dated 6.7.2010 passed by learned Addl.Sessions Judge, Mehsana in Criminal Revision Application No.33 of 2010 confirming the order dated 21.1.2010 passed by learned Addl.C.J.M., Mehsana in the matter of Langnaj police station C.R.No.I71 of 2005 granting "A" Summary, is quashed and setaside. The investigating police officer, namely, Dy.S.P., Mehsana shall further investigate the matter in terms of the order passed by the trial Court on dated 9.10.2007 and the further investigation shall be under the direct supervision of District Superintendent of Police, Mehsana.
9. Rule is made absolute. D.S permitted.
3. It is unfortunate that almost three years have passed by after the order was passed yet the directions issued by this Court have not been complied. The Investigating Officer who is present in the Court has put forward a very feeble submission that one Popatlal is out of India and they need to record the statement of Popatlal and obtain his specimen signature so as to compare the same with the disputed signature.
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R/SCR.A/3635/2012 ORDER
4. I am of the view that the insistence on the part of the Investigating Officer for the presence of the Popatlal is completely misplaced because the report of handwriting expert makes it clear that all the three signatures on the power of attorney are forged. If that be so, then I am of the view that the Investigating Officer should proceed further in accordance with law at the earliest.
5. Ms. Punani, after taking instruction from the Investigating Officer who is present in the Court submitted that within a period of four weeks from today, the needful will be done in accordance with law.
6. With the above, this petition is disposed of. Direct service is permitted.
(J.B.PARDIWALA, J.) aruna Page 5 of 5 HC-NIC Page 5 of 5 Created On Sun Oct 04 02:07:06 IST 2015