Gujarat High Court
Girishbhai Revashankar Joshi vs State Of Gujarat on 8 June, 2023
Author: Gita Gopi
Bench: Gita Gopi
R/SCR.A/555/2013 JUDGMENT DATED: 08/06/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 555 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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GIRISHBHAI REVASHANKAR JOSHI & 1 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR ZUBIN F BHARDA(159) for the Applicant(s) No. 1,2
MR YOGESH LAKHANI, SR. ADVOCATE WITH MR HR PRAJAPATI(674) for
the Respondent(s) No. 2
MS JIRGA JHAVERI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 08/06/2023
ORAL JUDGMENT
1. The petitioner No.1 is resident of Ahmedabad and petitioner No.2 being NRI, residing at London and he is the victim of a larger conspiracy, seek direction for further investigation under Section Page 1 of 12 Downloaded on : Thu Jun 15 20:31:32 IST 2023 R/SCR.A/555/2013 JUDGMENT DATED: 08/06/2023 173(8) of the Cr.P.C in connection with an offence being C.R.No.454/2006 registered with Ellisbridge Police Station, Ahmedabad on 15.06.2006 for the offence under Sections 302, 147, 148, 149, 120 (b) and 34 of the Indian Penal Code, 1860 and Section 135 of the Bombay Police Act, wherein it is alleged that NRI Mr. Pankajbhai Trivedi was brutally murdered near Ellis-bridge Gymkhana, and the matter was committed to the Court of Sessions and Sessions Case No.185/2009 has been registered before the City Sessions Court, Ahmedabad.
2. The petitioner No.2 as a part of larger conspiracy was brutally attacked and severely injured while on his visit to India in almost identical offence and by the same group of persons as the present offence and for that, separate FIR being C.R.No.I-10/2003 dated 12.01.2003 was registered at Jamnagar City 'A' Division Police Station, Jamnagar, for the offence under Sections 147, 148, 149, 323, 324, 325, 326 and 120 (b) of the Indian Penal Code, 1860.
3. As per the record, crime came to be investigated in connection with the offence being C.R.No.454/2006 and chargesheet was filed on 06.09.2006 against 10 accused persons. As per the case of the prosecution, deceased Pankajbhai Trivedi was disoriented with the functioning of swadhyay parivar under one Dhanshri @ Jayshree Didi and had raised voice against financial irregularities and such activities of deceased led to animosity in the Page 2 of 12 Downloaded on : Thu Jun 15 20:31:32 IST 2023 R/SCR.A/555/2013 JUDGMENT DATED: 08/06/2023 minds of accused and therefore, the accused persons conspired and ultimately the offence was committed.
4. The petitioner No.1 has been cited as a witness in the chargesheet, whereas, petitioner No.2 who returned to London after the attack on him in 2003 came to know from the newspaper report regarding development of his case, where the inquiry revealed that the investigation had come to an end abruptly without there being investigation to find out the the real culprits. It is alleged by petitioner No.2 that investigating officer submitted a report for further investigation on the ground that Jamnagar offence has a nexus to the offence registered as Ellisbridge Police Station, Ahmedabad and he himself had addressed several communications to the police authorities from U.K and also to the concerned Hon'ble Chief Minister pointing out that attack made on him and on deceased was on the similar way because of raising their voice against the financial and other irregularities of swadhyay parivar under Jayshree didi and they were found to be an eyesore for the organization and hence, under common target of the bigwigs of the swadhyay parivar including Jayshree didi, they were attacked.
5. The Petitioners stated that investigation was not on a right direction and had overlooked certain evidence, which could have helped the investigation to reach to the truth about the murder of Page 3 of 12 Downloaded on : Thu Jun 15 20:31:32 IST 2023 R/SCR.A/555/2013 JUDGMENT DATED: 08/06/2023 Pankajbhai Trivedi and the petitioner No.1 had filed an application Exh:46 on 10.12.2012 before the City Sessions Court, Ahmedabad and on the same day, petitioner No.2 also filed a pursis Exh:47 through his advocate to adopt the averments of application Exh:46, which came to be rejected and thus, aggrieved by the same, they have moved present Court under Articles 226 and 227 of the Constitution of India read with Section 482 of the Cr.P.C on the ground that the impugned order is unjust, arbitrary and against the evidence on record.
6. It is in this regard to the contentions raised in application Exh:46, it is submitted that, the learned Judge ought to have taken into consideration the letters written by the deceased to the various authorities about the impending threats to his life and also the names implicated in such letters. The petitioners state that those letters were found from the car of the deceased during the course of investigation, but the investigation was not carried out on a way of the contents of such letters and no statement of the persons named in those letters were recorded, nor they were called for interrogation. The petitioners state that letters directly indicate the name of Jayshree didi as responsible person, who carried out attack on the deceased and the inaction on the part of the investigating officer to investigate this angle has resulted into investigation going in wrong direction and therefore, the petitioners contended that Page 4 of 12 Downloaded on : Thu Jun 15 20:31:32 IST 2023 R/SCR.A/555/2013 JUDGMENT DATED: 08/06/2023 there is no fair and independent investigation. It is also contended by the petitioners that the learned Judge ought to have taken into consideration the statement of the witnesses (i) Himanshu Trivedi
(ii) Ashok Sani (iii) Mahendra Chudasama (iv) Shrutiben Trivedi (v) Manish Khunt, who according to the petitioners implicate (i) Hayshree didi (ii) Manish Savani (iii) Rajesh Parikh (iv) Ramnik Patel and (v) Bharat Bhatt in the offence. In spite of that, investigation has not proceeded at all in a right direction and the petitioners alleged that Jayshree didi is not even interrogated.
7. The petitioners further alleged that the call details are not analyzed in proper manner and on the basis of the call details of the accused persons, proper investigation would have resulted in pinning down the real accused involved in the offence, but distorted version of call detail analysis has resulted in misdirecting the investigation.
8. Learned advocate Mr. Zubin Bharda for the petitioners has relied on the judgment of Popular Muthiah Vs. State represented by Inspector of Police, reported in (2006) 7 SCC 296, to state that while exercising the appellate jurisdiction, the High Court in suo motu exercise of its inherent power can direct further investigation of the case against the persons, who were not chargesheeted and were not accused at the stage of trial, when the High Court comes to the conclusion that they should be included in Page 5 of 12 Downloaded on : Thu Jun 15 20:31:32 IST 2023 R/SCR.A/555/2013 JUDGMENT DATED: 08/06/2023 the chargesheet. Mr. Bharda thus has urged to exercise inherent jurisdiction of the Court to order for further investigation so as to direct towards the inquiry and interrogation of the alleged persons.
9. While countering the arguments, Mr. Yogesh Lakhani, learned Senior Counsel assisted by Mr. H.R.Prajapati, learned counsel for the complainant relying on the judgment of the Apex Court rendered in case of Vinubhai Haribhai Malaviya Vs. State of Gujarat reported in 2019 (17) SCC 1, stated that if no power can be exercised by a Magistrate of further investigation on post cognizance stage, no such power should be exercised by this Court since the exercise of inherent jurisdiction is always be sparingly made has to be satisfied about the existence of strong prima facie case against such alleged persons and further contended that the Court ordinarily should not interfere in the investigation conducted by the authorities while specifically directing the investigation to be made under a particular angle or by a particular agency. Senior Counsel Mr. Lakhani further submits that the Magistrate would have wide powers to direct further investigation even after a chargesheet is filed by the police in view of the jurisdiction entrusted to the Magistrate under Section 156(3) of Cr.P.C and further submitted that power to order further investigation under Section 173 (8) of Cr.P.C could be equated with that power as the Magistrate holds under Section 156 (3) and under Page 6 of 12 Downloaded on : Thu Jun 15 20:31:32 IST 2023 R/SCR.A/555/2013 JUDGMENT DATED: 08/06/2023 Sections 190 of Cr.P.C and such power would continue until the charges are framed by the Court, but once the trial has begun, further investigation should not be ordered by the Magistrate who would exercise the discretion only on the facts of the case.
10. It has been stated that more than 17 witnesses have been examined and as per the chargesheet, 14 witnesses remained to be examined by the trial Court and prior to filing of present petition, the petitioners had moved City Civil Court by application Exh:46 on 10.12.2012, which stood rejected on 08.02.2013. The Sessions Judge Ahmedabad had taken into consideration the submissions made by the petitioners and has made a detailed observations, which are as under:-
"10. The learned advocate Mr Gajjar has argued that in the statement of Himanshu Pankaj Trivedi, the son of the deceased and witness Shrutiben Trivedi the wife of the deceased Pankaj Trivedi and other witnesses like Ashok Shani, Mahendra Chudasama and Mansukh Khut clearly alleged the name of Jayshree Talvalker @ Didi, Manish Savani, Rajesh Parikh, Ramnik Pavel, and Bharat Bhatt, but the charge-sheet is filed only against Bharat Bhatt and there is no explanation why the other persons are not booked in the offence.
10.1 If we peruse the statement of the Himanshu Pankaj Trivedi and Shrutiben Pankaj Trivedi, it seems that they have not clearly expressed the name of the reputed persons of the Swadhyay Pariwar are involved in the matter, but they believed that the names are mentioned in the letters of the deceased Pankaj Trivedi may be involved in the offence. In this matter the investigation Page 7 of 12 Downloaded on : Thu Jun 15 20:31:32 IST 2023 R/SCR.A/555/2013 JUDGMENT DATED: 08/06/2023 carried out and after investigation the investigating officer has found that 10 persons have made conspiracy for committing the offence of the murder and therefore, they have been booked.
10.2 Mere names are mentioned in the letters and they are not booked as the accused cannot be said that the investigation is not carried out in its real spirit. From the records it seems that the statement of Jayshree Talvalker @ Didi of Swadhyay Pariwar is not recorded by the investigating officer. Of course in the matter when apprehension has been expressed by the deceased as to his unnatural death and for that the names are shown in his letters and one of the names shown in the letters is of Jayshree Talvalker @ Didi, it was the duty of the investigating officer to interrogate the said person, but mere the statement is not recorded of the said person cannot be said that the investigating officer is protecting the said person and investigation is not carried out in its real spirit. The investigating officer has recorded the Statement of so many persons and after investigation, the investigating officer has found 10 persons responsible for committing the offence and so charge-sheet is filed.
11. The learned advocate Mr Gajjar has argued that the police has not used scientific method for interrogation of the accused. The investigating officer has not sent accused for Narcoanalysis test and polygraphic test.
11.1 If we peruse the police papers, it is crystal clear that the investigating officer had given application before the competent Court for obtaining permission for Narcoanalysis test of some of the accused which was rejected by the Court and so the accused could not be sent for Narcoanalysis test and polygraphic test. In such circumstances, the allegation against the investigating officer as he has not investigated the case with the help of the scientific method cannot be accepted.
12. The learned advocate Mr V. D. Gaijjar for the applicant has Page 8 of 12 Downloaded on : Thu Jun 15 20:31:32 IST 2023 R/SCR.A/555/2013 JUDGMENT DATED: 08/06/2023 vehemently argued that from the police papers, it seems that the investigating officer is interested and he has not carried out the investigation in its proper Spirit. He has also argued that the documents which are taken as Mudammal clearly reflect the name of the reputed persons of the Swadhyay Fariwar for the murder of the deceased Pankaj Trivedi, even though reputed persons were not summoned for interrogation.
12.1 From the records, it seems that the documents which are recovered from the Car of the deceased Pankaj Trivedi by the investigating officer, the investigating officer has relied upon the said documents which are found relevant and necessary in the investigation.
12.2 If we peruse the said documents it seems that the deceased Pankaj Trivedi has written letters to the various authorities wherein he has mentioned the name of the reputed persons of the Swadhyay Pariwar to whom considered responsible for his death, in case of his unnatural death.
12.3 The documents which are recovered from the Car of the deceased Pankaj Trivedi is the part of the record of his case. The question whether the names are mentioned in the letters should be made as an accused in the matter can be decided during the trial by the Court, if any evidence is brought on the record against the person and for that reason there is no need to send the matter for further investigation. The court can join the person as an accused against whom the evidence is brought on record under Section 319 of Criminal procedure Code."
10. The learned Sessions Judge observing the abovementioned facts had concluded in para 24.1 and 25 as under:-
24.1 In this matter, on 10/12/2012, the charge has been framed against the present accused for the offence under Sections 120(B), Page 9 of 12 Downloaded on : Thu Jun 15 20:31:32 IST 2023 R/SCR.A/555/2013 JUDGMENT DATED: 08/06/2023 143, 147, 148, 302 read with Section 149 of the IPC and 135(1) of the B. P Act and matter is pending for recording the evidence. In such circumstances, the direction cannot be given for further investigation.
25. It is well settled principle that in the Session case, the public prosecutor is in the charge of the case and no other person has right of audience before the Court. It is also settled that even in the application filed by the accused for bail or anticipatory bail the complainant can appear through an advocate but the complainant or his advocate has no right of audience before the Court and they should put their case through public prosecutor who is in charge of the case. In such circumstances, the witness or third person has no right to give such application for further investigation. If they want to give such application it should be submitted through the public prosecutor and if the public prosecutor is not inclined to submit the same they should approach the Hon'ble High Court or the Hon'ble Supreme Court, the involving the writ jurisdiction of the Court. In view of the above settle position of the law, the Session Court cannot entertain the application given by the witness.
26. As discussed above the Session Court on the basis of the application of the witness cannot direct the investigating officer for further investigation of the offence after framing of the accused.
Moreover, the witness has no right of audience before the Sessions Court and he should file application through the public Prosecutor in charge of the case. Moreover, the investigation carried out by the investigating officer with the help of the team, in such circumstances, there is no need to give the direction for further investigation of the officer. Hence, the application deserves to be rejected."
11. The application for further investigation was rejected after a detailed consideration on the grounds raised by the petitioners. Page 10 of 12 Downloaded on : Thu Jun 15 20:31:32 IST 2023
R/SCR.A/555/2013 JUDGMENT DATED: 08/06/2023
12. In this case, the trial is now at the fag-end of conclusion. The petitioners could not raise any other grounds for this Court to exercise an inherent jurisdiction.
13. In the judgment of Popular Muthiah (supra), the Hon'ble Apex Court in para 56 has observed thus:-
"56. So far as inherent power of the High Court is concerned, indisputably the same is required to be exercised sparingly. The High Court may or may not in a given situation, particularly having regard to lapse of time, exercise its discretionary jurisdiction. For the said purpose, it was not only required to apply its mind to the materials on records but was also required to consider as to whether any purpose would be served thereby."
14. Here in this case too, the grievance has been raised before the City Civil Court by moving application at Exh:46 and by order dated 08.02.2013, prayer for further investigation was rejected and aggrieved by the same, the petitioners have moved this Court in the year 2013. The trial has progressed. Witnesses have been examined. It has now been a long time. This Court does not find any reason to consider the prayer, since the chargesheet has been filed against nine persons and the trial Court has recorded the evidence of 17 witnesses.
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15. For the foregoing reasons, this Court does not find any reason for exercising inherent jurisdiction for further investigation, hence, no relief can be granted as prayed for by the petitioners. Accordingly, present petition stands rejected.
Sd/-
(GITA GOPI,J) SUCHIT Page 12 of 12 Downloaded on : Thu Jun 15 20:31:32 IST 2023