Gujarat High Court
Manishaben Vrajlal Thakkar vs State Of Gujarat on 18 April, 2024
NEUTRAL CITATION
R/CR.RA/10/2024 CAV JUDGMENT DATED: 18/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 10 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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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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MANISHABEN VRAJLAL THAKKAR
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR SHALIN MEHTA SENIOR COUNSEL WITH MR RAHUL DHOLAKIYA for
the applicant. KSHITIJ M AMIN(7572) for the Applicant(s) No. 1
MR JAL UNWALA, SENIOR COUNSEL WITH MR SHIVANG M SHAH(5916)
for the Respondent(s) No. 2,3
MR MITEH AMIN ADDITIONAL ADVOCATE GENERAL WITH MR HK
PATEL APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 18/04/2024
CAV JUDGMENT
Rule. Learned Advocate Mr.Shivang Shah waives service of notice for respondents no.2 and 3 and learned APP Mr.H K Patel waives service of notice for respondent-State. With the consent of learned advocates appearing for the respective parties, the Page 1 of 30 Downloaded on : Fri Apr 19 21:40:23 IST 2024 NEUTRAL CITATION R/CR.RA/10/2024 CAV JUDGMENT DATED: 18/04/2024 undefined matter is taken up for final hearing.
2. By way of this revision, filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (for short 'the Code'), the petitioner - org. complainant has prayed for the following main reliefs:
"(B) This Hon'ble Court may be pleased to quash and set aside the order dated 15.07.2023 passed below Exhibit 23 in Criminal Case No. 5001743 of 2016 by the Ld. Addl. Chief Metropolitan Magistrate, Ahmedabad at Court No. 5, and consequentially be pleased to allow the application below Exhibit 23 preferred by the applicant herein in Criminal Case No. 5001743 of 2016, justice; in the interest of justice. "
3. The facts coming forth from the record are summarized as under:
3.1 That FIR being I-CR No.41 of 2016 with Vatva Police Station was lodged on 08.06.2016 inter alia stating that the accused persons were ex- employees with a company namely K.H.S. Machinery Pvt. Ltd. While serving with the complainant company the accused persons had illegally gathered the internal technical knowhow of the machines manufactured by the complainant company and despite the fact that the said information was neither to be utilized by them nor meant to be shared with anybody outside the company whosoever, the accused persons in connivance with one another and in view of criminal conspiracy hatched amongst themselves had illegally obtained the said information and had used the same for their Page 2 of 30 Downloaded on : Fri Apr 19 21:40:23 IST 2024 NEUTRAL CITATION R/CR.RA/10/2024 CAV JUDGMENT DATED: 18/04/2024 undefined own benefit, as such breached the terms of agreement of company. Eventually a tri-party agreement dated 23.10.2012 entered between parties is violated later on.
3.2 After registration of FIR under Sections 408, 409, 406, 410 and 120-B of the Indian Penal Code, investigation was started and upon conclusion of the investigation, the charge-
sheet came to be filed before the learned Additional Chief Metropolitan Magistrate, Court No. 5, Ahmedabad on 29.10.2016 which culminated into Criminal Case No. 5001743 of 2016.
3.3 Since vital documents were not collected as per say of petitioner, the petitioner had earlier addressed a communication dated 09.02.2017 to investigating agency to carry further investigation under the provisions of section 173 (8) of the Code of Criminal Procedure, 1973 however no action whatsoever had been taken by the Investigating Agency.
3.4 That, meanwhile the accused persons had approached this Hon'ble Court for quashing of the FIR and subsequent proceedings arising out of FIR vide Special Criminal Application No. 999 of 2017 wherein initially stay was granted by the Hon'ble High Court vide order dated 27.02.2017.
3.5 In view of the inaction on part of the IO to act upon the representation dated 09.02.2017, the petitioner had approached this Court vide Special Criminal Application No. 3177 of 2017 and said petition came to be disposed of as per order dated 18.09.2017 upon the statement of Mr. V. N. Vaghela, Police Sub Page 3 of 30 Downloaded on : Fri Apr 19 21:40:23 IST 2024 NEUTRAL CITATION R/CR.RA/10/2024 CAV JUDGMENT DATED: 18/04/2024 undefined Inspector, Vatva G.I.D.C. Police Station, Ahmedabad that the representation dated 09.02.2017 shall be considered and acted as expeditiously as possible not later than two months. However, in view of the stay granted by this Court in the quashing application preferred by the accused persons, the application being Special Criminal Application No. 3177 of 2017 was withdrawn by the first informant with liberty to seek appropriate clarification vide order dated 01.12.2017 passed in Criminal Misc. Application No. 29289 of 2017.
3.6 Consequently, petitioner herein had approached this Hon'ble Court vide Criminal Misc. Application No. 2 of 2018 in Special Criminal Application No. 999 of 2017 (the petition moved by accused seeking quashment of FIR) inter alia praying for further investigation of the offence, pending hearing of quashing application preferred by the accused. However said application is disposed of with observation that instead of hearing the said application, seeking certain clarifications, the main matter itself should be heard, as such Criminal Misc. Application was disposed of with rider that during the final hearing of quashing petition, it would be open and permissible for the applicant / petitioner to raise the plea of further investigation.
3.7 That, the proceedings of quashing application preferred by the accused vide Special Criminal Application No. 999 of 2017, this Hon'ble Court vide judgment and order dated 08.01.2019 was pleased to dismiss the said application. As against the aforesaid judgment and order dated 08.01.2019, the accused persons had approached the Hon'ble Apex Court vide SLP Page 4 of 30 Downloaded on : Fri Apr 19 21:40:23 IST 2024 NEUTRAL CITATION R/CR.RA/10/2024 CAV JUDGMENT DATED: 18/04/2024 undefined Criminal No. 3223 of 2019 which came to be dismissed on 15.04.2019.
3.8 In view of the aforesaid, the first informant herein had once again approached the Investigating Officer vide representation dated 01/05/2019; seeking further investigation; however no action was taken by the investigating agency. Therefore, the first informant approached this High Court vide Special Criminal Application No. 8170 of 2019. This Court keeping in mind the law laid down by the Hon'ble Apex Court in the case of Amrutbhai Shambhubhai Patel v/s Sumanbhai Kantibhai Patel reported in 2017 (4) SCC 177 prevalent at that point of time vide order dated 26.08.2019 directed the Investigating Agency to look into and to take appropriate decision in connection with the representation dated 01.05.2019 in view of the law laid down in the case of Amrutbhai Shambhubhai Patel (supra) .
3.9 Subsequently, the applicant herein by way of Exhibit 23 approached the court of Learned Magistrate praying for further investigation under the provisions of section 173(8) of the Code of Criminal Procedure, 1973 in connection with the FIR being I C. R. No. 41 of 2016 registered with Vatva GIDC Police Station, Ahmedabad, more particularly in view of the decision of the Hon'ble Apex Court in the case of Vinubhai Haribhai Malaviya & Ors. v/s The State of Gujarat & Anr. [2019 (17) SCC 1]. In the said proceedings, the Investigating Agency submitted reply dated 21.06.2023 whereby they had stated that they do not intent to investigate the offence further, as entire investigation is completed. Thus, the said application below Exhibit 23 came to Page 5 of 30 Downloaded on : Fri Apr 19 21:40:23 IST 2024 NEUTRAL CITATION R/CR.RA/10/2024 CAV JUDGMENT DATED: 18/04/2024 undefined be rejected by the Learned Magistrate by placing reliance on the order dated 26.08.2019 passed by this Court in SCR.A No.8170 of 2019.
3.10 Hence, this revision.
4. Heard learned Senior Counsel Mr.Shalin Mehta with Mr.Rahul Dholakiya, learned advocate for the petitioner, learned Additional Advocate General Mr.Mitesh R Amin with Mr.H K Patel, learned APP for respondent - State of Gujarat and learned Senior Counsel Mr.Jal Unwala with Mr.Shivang Shah for the org. accused.
5. Learned Senior Counsel Mr.Shalin Mehta for the petitioner
- org. complainant would submit that learned Court below has erred in rejecting the application Exh.23 on the premises that this Court has already decided the issue in SCR.A No.8170 of 2019. Learned Senior Counsel for the petitioner after taking this Court through oral order passed in SCR.A No.8170 of 2019 would submit that order was passed by this Court upon the law laid down in the case of Amrutbhai Shambhubhai Patel (supra) to hold that the first informant has no locus standi to move the application for further investigation under Section 173(8) of the Code and upon such finding the said petition came to be disposed of.
5.1 Learned Senior Counsel Mr.Shalin Mehta for the petitioner would further submit that law laid down in Amrutbhai Shambhubhai Patel (supra) has been overruled by the Hon'ble Page 6 of 30 Downloaded on : Fri Apr 19 21:40:23 IST 2024 NEUTRAL CITATION R/CR.RA/10/2024 CAV JUDGMENT DATED: 18/04/2024 undefined Apex Court in the case of Vinubhai Haribhai Malaviya & Ors. (supra) whereby the Hon'ble Apex Court has elaborately discussed the issue and propounded that the further investigation can be prayed even by the complainant before the trial actually commenced. Learned Senior Counsel Mr.Shalin Mehta would submit that based upon such decision, the petitioner moved application at Exh.23 seeking further investigation as charges were not framed in the trial; however learned trial Court on the wrong premises, beliefs and interpretation of law and on technical grounds erroneously rejected the said application.
5.2 Learned Senior Counsel Mr.Shalin Mehta for the petitioner would further submit that learned trial Court did not look at the facts and circumstances under which the Exh.23 was moved and just passed impugned order mechanically with reasons that issue has already been addressed by Hon'ble High Court and therefore petitioner cannot be permitted to move a fresh application, which is a serious error of law.
5.3 Learned Senior Counsel Mr.Shalin Mehta for the petitioner would submit that law laid down in the case of Amrutbhai Shambhubhai Patel (supra) has been overruled by Hon'ble Apex Court in case of Vinubhai Haribhai Malaviya & Ors. (supra) and therefore the learned Court below ought to have considered the said decision while deciding application at Exh.23; but the decision in Vinubhai Haribhai Malaviya & Ors. (supra) is totally ignored, as such learned trial Court has erred. Learned Senior Counsel would rely upon the paragraphs 23, 25, 26, 36 and 38 Page 7 of 30 Downloaded on : Fri Apr 19 21:40:23 IST 2024 NEUTRAL CITATION R/CR.RA/10/2024 CAV JUDGMENT DATED: 18/04/2024 undefined of the judgment which reads thus:
"23. It is thus clear that the Magistrate's power under Section 156(3) of the CrPC is very wide, for it is this judicial authority that must be satisfied that a proper investigation by the police takes place. To ensure that a "proper investigation" takes place in the sense of a fair and just investigation by the police - which such Magistrate is to supervise - Article 21 of the Constitution of India mandates that all powers necessary, which may also be incidental or implied, are available to the Magistrate to ensure a proper investigation which, without doubt, would include the ordering of further investigation after a report is received by him under Section 173(2); and which power would continue to enure in such Magistrate at all stages of the criminal proceedings until the trial itself commences. Indeed, even textually, the "investigation" referred to in Section 156(1) of the CrPC would, as per the definition of "investigation" under Section 2(h), include all proceedings for collection of evidence conducted by a police officer; which would undoubtedly include proceedings by way of further investigation under Section 173(8) of the CrPC.
xxx xxx xxx
25. Whereas it is true that Section 156(3) remains unchanged even after the 1973 Code has been brought into force, yet the 1973 Code has one very important addition, namely, Section 173(8), which did not exist under the 1898 Code. As we have noticed earlier in this judgment, Section 2(h) of the 1973 Criminal Procedure Code defines "investigation" in the same terms as the earlier definition contained in Section 2(l) of the 1898 Criminal Procedure Code with this difference - that "investigation" after the 1973 Code has come into force will now include all the proceedings under the CrPC for collection of Page 8 of 30 Downloaded on : Fri Apr 19 21:40:23 IST 2024 NEUTRAL CITATION R/CR.RA/10/2024 CAV JUDGMENT DATED: 18/04/2024 undefined evidence conducted by a police officer. "All" would clearly include proceedings under Section 173(8) as well. Thus, when Section 156(3) states that a Magistrate empowered under Section 190 may order "such an investigation", such Magistrate may also order further investigation under Section 173(8), regard being had to the definition of "investigation" contained in Section 2(h).
26. Section 2(h) is not noticed by the aforesaid judgment at all, resulting in the erroneous finding in law that the power under Section 156(3) can only be exercised at the pre-cognizance stage. The "investigation" spoken of in Section 156(3) would embrace the entire process, which begins with the collection of evidence and continues until charges are framed by the Court, at which stage the trial can be said to have begun. For these reasons, the statement of the law contained in paragraph 17 in Devarapalli Lakshminarayana Reddy (supra) cannot be relied upon.
xxx xxx xxx
36. Despite the aforesaid judgments, some discordant notes were sounded in three recent judgments. In Amrutbhai Shambubhai Patel v. Sumanbhai Kantibai Patel (2017) 4 SCC 177, on the facts in that case, the Appellant/Informant therein sought a direction under Section 173(8) from the Trial Court for further investigation by the police long after charges were framed against the Respondents at the culminating stages of the trial. The Court in its ultimate conclusion was correct, in that, once the trial begins with the framing of charges, the stage of investigation or inquiry into the offence is over, as a result of which no further investigation into the offence should be ordered. But instead of resting its judgment on this simple fact, this Court from paragraphs 29 to 34 resuscitated some of the Page 9 of 30 Downloaded on : Fri Apr 19 21:40:23 IST 2024 NEUTRAL CITATION R/CR.RA/10/2024 CAV JUDGMENT DATED: 18/04/2024 undefined earlier judgments of this Court, in which a view was taken that no further investigation could be ordered by the Magistrate in cases where, after cognizance is taken, the accused had appeared in pursuance of process being issued. In particular, Devarapalli Lakshminarayana Reddy (supra) was strongly relied upon by the Court. We have already seen how this judgment was rendered without adverting to the definition of "investigation" in Section 2(h) of the CrPC, and cannot therefore be relied upon as laying down the law on this aspect correctly. The Court therefore concluded:
"49. On an overall survey of the pronouncements of this Court on the scope and purport of Section 173(8) of the Code and the consistent trend of explication thereof, we are thus disposed to hold that though the investigating agency concerned has been invested with the power to undertake further investigation desirably after informing the court thereof, before which it had submitted its report and obtaining its approval, no such power is available therefor to the learned Magistrate after cognizance has been taken on the basis of the earlier report, process has been issued and the accused has entered appearance in response thereto. At that stage, neither the learned Magistrate suo motu nor on an application filed by the complainant/informant can direct further investigation. Such a course would be open only on the request of the investigating agency and that too, in circumstances warranting further investigation on the detection of material evidence only to secure fair investigation and trial, the life purpose of the adjudication in hand. 50The unamended and the amended sub-section (8) of Section 173 of the Code if read in juxtaposition, would Page 10 of 30 Downloaded on : Fri Apr 19 21:40:23 IST 2024 NEUTRAL CITATION R/CR.RA/10/2024 CAV JUDGMENT DATED: 18/04/2024 undefined overwhelmingly attest that by the latter, the investigating agency/officer alone has been authorised to conduct further investigation without limiting the stage of the proceedings relatable thereto. This power qua the investigating agency/officer is thus legislatively intended to be available at any stage of the proceedings. The recommendation of the Law Commission in its 41st Report which manifestly heralded the amendment, significantly had limited its proposal to the empowerment of the investigating agency alone.
51. In contradistinction, Sections 156, 190, 200, 202 and 204 CrPC clearly outline the powers of the Magistrate and the courses open for him to chart in the matter of directing investigation, taking of cognizance, framing of charge, etc. Though the Magistrate has the power to direct investigation under Section 156(3) at the pre- cognizance stage even after a charge-sheet or a closure report is submitted, once cognizance is taken and the accused person appears pursuant thereto, he would be bereft of any competence to direct further investigation either suo motu or acting on the request or prayer of the complainant/informant. The direction for investigation by the Magistrate under Section 202, while dealing with a complaint, though is at a post-cognizance stage, it is in the nature of an inquiry to derive satisfaction as to whether the proceedings initiated ought to be furthered or not. Such a direction for investigation is not in the nature of further investigation, as contemplated under Section 173(8) of the Code. If the power of the Magistrate, in such a scheme envisaged by CrPC to order further investigation even after the cognizance is taken, the accused persons Page 11 of 30 Downloaded on : Fri Apr 19 21:40:23 IST 2024 NEUTRAL CITATION R/CR.RA/10/2024 CAV JUDGMENT DATED: 18/04/2024 undefined appear and charge is framed, is acknowledged or approved, the same would be discordant with the state of law, as enunciated by this Court and also the relevant layout of CrPC adumbrated hereinabove. Additionally had it been the intention of the legislature to invest such a power, in our estimate, Section 173(8) CrPC would have been worded accordingly to accommodate and ordain the same having regard to the backdrop of the incorporation thereof. In a way, in view of the three options open to the Magistrate, after a report is submitted by the police on completion of the investigation, as has been amongst authoritatively enumerated in Bhagwant Singh [Bhagwant Singh v. Commr. of Police, (1985) 2 SCC 537 : 1985 SCC (Cri) 267] , the Magistrate, in both the contingencies, namely; when he takes cognizance of the offence or discharges the accused, would be committed to a course, whereafter though the investigating agency may for good reasons inform him and seek his permission to conduct further investigation, he suo motu cannot embark upon such a step or take that initiative on the request or prayer made by the complainant/informant. Not only such power to the Magistrate to direct further investigation suo motu or on the request or prayer of the complainant/informant after cognizance is taken and the accused person appears, pursuant to the process, issued or is discharged is incompatible with the statutory design and dispensation, it would even otherwise render the provisions of Sections 311 and 319 CrPC, whereunder any witness can be summoned by a court and a person can be issued notice to stand trial at any stage, in a way redundant. Axiomatically, thus the impugned decision Page 12 of 30 Downloaded on : Fri Apr 19 21:40:23 IST 2024 NEUTRAL CITATION R/CR.RA/10/2024 CAV JUDGMENT DATED: 18/04/2024 undefined annulling the direction of the learned Magistrate for further investigation is unexceptional and does not merit any interference. Even otherwise on facts, having regard to the progression of the developments in the trial, and more particularly, the delay on the part of the informant in making the request for further investigation, it was otherwise not entertainable as has been rightly held by the High Court."
38. There is no good reason given by the Court in these decisions as to why a Magistrate's powers to order further investigation would suddenly cease upon process being issued, and an accused appearing before the Magistrate, while concomitantly, the power of the police to further investigate the offence continues right till the stage the trial commences. Such a view would not accord with the earlier judgments of this Court, in particular, Sakiri (supra), Samaj Parivartan Samudaya (supra), Vinay Tyagi (supra), and Hardeep Singh (supra); Hardeep Singh (supra) having clearly held that a criminal trial does not begin after cognizance is taken, but only after charges are framed. What is not given any importance at all in the recent judgments of this Court is Article 21 of the Constitution and the fact that the Article demands no less than a fair and just investigation. To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate's nod under Section 173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases midway through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is Page 13 of 30 Downloaded on : Fri Apr 19 21:40:23 IST 2024 NEUTRAL CITATION R/CR.RA/10/2024 CAV JUDGMENT DATED: 18/04/2024 undefined not so left out. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156(3) read with Section 156(1), Section 2(h), and Section 173(8) of the CrPC, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding, as was held in Hasanbhai Valibhai Qureshi (supra). Therefore, to the extent that the judgments in Amrutbhai Shambubhai Patel (supra), Athul Rao (supra) and Bikash Ranjan Rout (supra) have held to the contrary, they stand overruled. Needless to add, Randhir Singh Rana v. State (Delhi Administration) (1997) 1 SCC 361 and Reeta Nag v. State of West Bengal and Ors. (2009) 9 SCC 129 also stand overruled."
5.4 Learned Senior Counsel Mr.Shalin Mehta for the petitioner would submit that Exh.23 application deserves consideration to ensure that proper investigation to be carried out. He would submit that fair trial is a right of the complainant which includes the order of further investigation of the offence even after filing of the charge-sheet under Section 173(2) of the Code. However, Page 14 of 30 Downloaded on : Fri Apr 19 21:40:23 IST 2024 NEUTRAL CITATION R/CR.RA/10/2024 CAV JUDGMENT DATED: 18/04/2024 undefined learned trial Court has failed to understand this legal issue and rejected the application at Exh.23 on the technical ground. He would therefore urge this Hon'ble Court to remand the matter for afresh hearing by allowing this revision.
5.5 Upon above submissions, learned Senior Counsel Mr.Shalin Mehta for the petitioner would submit to allow this revision and grant the relief as claimed in the revision.
6. Learned Additional Advocate General Mr.Mitesh Amin for the respondent-State while vociferously opposing this revision submitted that charge-sheet in the case is filed in the year 2016. The complainant under one or another pretext moved application to derail the trial. He would further submit that application Exh.23 is one more attempt to derail and protract the trial which has already been extended. He would further submit that, though in case on hand charge-sheet is filed in year 2016, complainant by filing multiple applications, did not allow to proceed in criminal trial, even prevented learned trial Court from framing charge. Taking this Court through the various record and proceedings of this revision and elaborating the facts, he would submit that after filing of charge-sheet time and again the petitioner moved application/s for further investigation. In one such attempt, he was given a liberty to raise his contentions in quashing petition filed by the accused; but she did not choose to do so and whenever the trial posted for further proceedings, such applications are filed without having any base at the behest of the complainant and therefore, it is submitted that this revision is nothing but one more attempt to derail the trial.
Page 15 of 30 Downloaded on : Fri Apr 19 21:40:23 IST 2024NEUTRAL CITATION R/CR.RA/10/2024 CAV JUDGMENT DATED: 18/04/2024 undefined 6.1 Learned Additional Advocate General Mr.Mitesh Amin would submit that of-course in the case of Vinubhai Haribhai Malaviya & Ors. (supra) the Hon'ble Apex has held that the complainant has right to move the application for further investigation to ensure that truth may culled out; but the complainant has no authority to drive the investigation in the way she wishes. Petitioner may be first informant but he can not impel that investigation of the offence should be done in the way he thinks. A fair investigation is required; but fairness cannot be viewed from the eye of the complainant. He would further submit that it is incorrect to say that learned trial Court has not considered the law laid down in case of Vinubhai Haribhai Malaviya & Ors. (supra) while rejecting the application; on the contrary learned trial Court believed that there is no merit in the application Exh.23, more particularly, when the Investigating Officer pursuant to order passed below Exh.24 in the said criminal case declared that now nothing remains to be investigated in the offence. In view of that declaration, application at Exh.23 becomes groundless and as such does not deserve any consideration and has been rightly dismissed by learned trial Court. Present revision is one more attempt to unsettle the proceedings.
6.2 Upon above submissions, learned Additional Advocate General Mr.Mitesh Amin would submit to dismiss the revision application.
7. Joining the hand with the submissions of learned Page 16 of 30 Downloaded on : Fri Apr 19 21:40:23 IST 2024 NEUTRAL CITATION R/CR.RA/10/2024 CAV JUDGMENT DATED: 18/04/2024 undefined Additional Advocate General Mr.Mitesh Amin, learned Senior Counsel Mr.Jal Unwala for the respondent no.2 would submit that governing principle of further investigation is under the domain of doctrine of just and fair investigation which is intrinsic part of Article 21 of the Constitution. He would further submit that it cannot be denied that learned Magistrate holds the power to order further investigation before the commencement of the trial; but it is the discretion of the Court to be exercised judicially within the facts and circumstances of each case, and in accordance with law. The basic purpose of further investigation is to find out the truth and to do the substantial justice and not to drive the criminal case at the impulse of the first informant. He would further submit that charge-sheet is filed in the year 2016 and multiple attempts are made to stall the investigation, and to derail the trial, application Exh.23 was preferred which was rightly rejected by the learned trial Court.
7.1 Upon above submissions, learned Senior Counsel Mr.Unwala for the respondent no.2 would submit to dismiss the revision application.
8. After hearing the learned Counsels appearing for the respective parties and before adverting to the merits of the case, certain proceedings previously taken between the parties are required to be noticed.
I. The FIR being I-CR No.41 of 2016 is filed with Vatva Police Station was filed against the accused on 08/06/2016 making various allegations for the Page 17 of 30 Downloaded on : Fri Apr 19 21:40:23 IST 2024 NEUTRAL CITATION R/CR.RA/10/2024 CAV JUDGMENT DATED: 18/04/2024 undefined alleged offence. The basic allegations in the FIR is about breach of tri-party agreement dated 30/02/2012. Investigation was commenced and the police report in the form of charge-sheet was filed before the learned Metropolitan Magistrate Court No.5, Ahmedabad on 29/10/2016. Charge-sheet was converted in CC No.5001743 of 2016 and process was issued to accused.
II. After around four months, the first informant on 09/02/2017, addressed the communication to the IO stating that IO has not collected the documentary evidence as well as oral evidence which he was required to collect. To be noted that, in first four months after filing of charge-sheet the first informant remained silent. In the said communication, it was contended that accused persons were granted limited power / access to the data belonging to the complainant - company like offers given to such customers, list and contact details of customers, electric drawings of machines, automation programs for machine operations, etc., but same has been stolen and used by the accused without any authorization. With the further assertion that in Civil Suit filed by the complainant, the Court Commission took place whereby vital material pertaining to the offence is collected and that is also required to be examined.
Page 18 of 30 Downloaded on : Fri Apr 19 21:40:23 IST 2024NEUTRAL CITATION R/CR.RA/10/2024 CAV JUDGMENT DATED: 18/04/2024 undefined III.Since it was believed by the first informant that PSI, Vatva Police Station will not address this communication, she moved SCR.A No.3177 of 2017 before this Court and by an order dated 18/09/2017, the co-ordinate Bench, after recording the statement of learned APP upon instructions received from Mr.V.N.Vaghela, Police Sub Inspector, Vatva G.I.D.C. Police Station, Ahmedabad City, that the representation dated 09.02.2017 shall be considered and acted as expeditiously as possible not later than two months and in that view of the matter, as learned advocate appearing for the petitioner, does not press said petition, disposed of the petition accordingly. Then, recall application being CR.MA (Recall) No.29289 of 2017 in SCR.A No.3177 of 2017 was made on the premises that in SCR.A No.999 of 2017 which was moved by the accused for quashing of the complaint / FIR, interim-relief is operating in their favour; considering the interim-relief operating in quashing petition, the co-ordinate Bench vide order dated 01/12/2017 allowed the recall application and disposed of SCR.A No.3177 of 2017 as dismissed as withdrawn.
IV.Meanwhile, CR.MA No.3832 of 2018 was moved by the present petitioner in SCR.A No.999 of 2017 which has been disposed of giving the liberty to the petitioner to raise plea of further investigation during the course of hearing of main matter. Relevant Page 19 of 30 Downloaded on : Fri Apr 19 21:40:23 IST 2024 NEUTRAL CITATION R/CR.RA/10/2024 CAV JUDGMENT DATED: 18/04/2024 undefined paragraph 5 of the said order reads thus:
"5. It will be open and permissible for the applicant to raise the plea of further investigation in the course of the hearing of the main matter."
V. According to paragraph (vii) of the petition (page - G), another application being CR.MA No.2 of 2018 was moved in SCR.A No.999 of 2017 inter alia praying for further investigation on the ground that the material stated therein if not collected by the IO, it would hamper the very case of the complainant. The said application was disposed of permitting the petitioner to raise all issue during the final hearing of SCR.A No.999 of 2017. (Order passed in CR.MA No.2 of 2018 is not annexed).
VI.At Annexure - H, the oral order in SCR.A No.999 of 2018 passed by the co-ordinate Bench is produced. The quashing petition of the accused was dismissed and interim relief was vacated. On going through the entire order, it reveals that during final hearing of SCR.A No.999 of 2018, though the complainant reserved the liberty to raise issue of further investigation and even liberty was granted to complainant; did not argue and raise the same.
VII. Another application was moved to the Vatva Police Station by the petitioner on 26/04/2019 Page 20 of 30 Downloaded on : Fri Apr 19 21:40:23 IST 2024 NEUTRAL CITATION R/CR.RA/10/2024 CAV JUDGMENT DATED: 18/04/2024 undefined (Annexure-J) seeking further investigation. At this time, the complainant came out with some other idea that relevant documents like finance books, accounts, etc., pertaining to the company floated by accused was required to be collected, however the same is not done. That in connection with the said offence, statements of important witnesses have not been recorded such as IT head viz., Pramod Kasarekar; details of their personal e-mail address by which the exchange of stolen datas, etc., have been felicitate are not obtained by the IO. As the contention / communication of the complainant has not been considered, the petitioner herein - org. complainant again approached this Court by filing SCR.A No.8170 of 2019, the said petition came to be disposed by an order dated 26/08/2019 by making following observations in paragraph 3 to 5.
"3. Having heard the submissions made at bar and considering the decision of the Hon'ble Apex Court in case of Amrutbhai Shambhubhai Patel Vs. Sumanbhai Kantibhai Patel and others reported in (2017) 4 SCC 177, it appears that the petitioner has moved an application before the Police Inspector u/s 173(8) of the Code for further investigation on 26.4.2019 annexed at Annexure A to this petition.
4. In view of the decision of the Hon'ble Apex Court and further considering the fact that the trial Court has taken cognizance of the matter and summons are issued and the accused have appeared before the trial Court, it is the investigating agency who can with the permission Page 21 of 30 Downloaded on : Fri Apr 19 21:40:23 IST 2024 NEUTRAL CITATION R/CR.RA/10/2024 CAV JUDGMENT DATED: 18/04/2024 undefined of the Court undertake further investigation in the matter u/s 173(8) of the Code with the available relevant materials. In other words, neither the first informant nor the accused have any right to move any application u/s 173(8) of the Code for further investigation.
5. In view of settled legal position, the aforementioned prayer is not maintainable at this stage, but considering the petitioner's application at Annexure A, concerned investigating agency is directed to look into and take appropriate decision, if necessary and required in accordance with law."
VII. Thus, what appears that the co-ordinate Bench has followed the law laid down in Amrutbhai Shambhubhai Patel (supra) prevalent good law at the relevant time to hold that the first informant is not given right to move application under Section 173(8) of the Code for further investigation. However, at the same time, directed the Police to undertake the necessary investigation in regards to communication at Annexure-A of that petition in accordance with law. It appears that co-ordinate Bench though had not recognized right of petitioner - org. complainant to move application for further investigation under Section 173(8) of the Code, directed the investigating officer to look into the grievance raised by petitioner - org. complainant vide Annexure-A to the petition. Thus, practically the decision in said SCR.A favoured the petitioner - org. complainant.
IX. The police vide communication dated Page 22 of 30 Downloaded on : Fri Apr 19 21:40:23 IST 2024 NEUTRAL CITATION R/CR.RA/10/2024 CAV JUDGMENT DATED: 18/04/2024 undefined 21/06/2023 addressed to the Additional Chief
Metropolitan Magistrate submitted that complete and thorough investigation has been done and no further investigation is required in the offence (Annexure-A).
9. In background of the above checkered history, if the application Exh.23 moved before the learned trial Court is examined, copy whereof is produced during the hearing of this petition, it indicates that it is nothing but re-production of earlier communications addressed to the Vatva Police Station by the petitioner which establish that upon one or other words the petitioner agitated the same issue, which was decided more than once. True that complainant has locus to move application for further investigation, before trial commence; but not one after another.
10. In case of Vinubhai Haribhai Malaviya & Ors. (supra), the Hon'ble Apex Court laid importance of Article 21 of the Constitution an also to the fact that Article 21 demands no less than a fair and just investigation. It also observed that principle of fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate's nod under Section 173(8) to further investigate an offence till charges are framed. But, the Magistrate who hold supervisory jurisdiction how would be ceased mid-way from passing order for further investigation. It is also observed that travesty of justice would be prevail if Magistrate is prevented from passing the order of further investigation as may shut door for innocent person who is wrongly arraigned as an accused or Page 23 of 30 Downloaded on : Fri Apr 19 21:40:23 IST 2024 NEUTRAL CITATION R/CR.RA/10/2024 CAV JUDGMENT DATED: 18/04/2024 undefined that a prima facie guilty person not to left out. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. The Hon'ble Apex Court also gave example that fresh facts if come to light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding.
11. What could be noticed from the impugned order that the learned trial Court has applied the decision in case of Vinubhai Haribhai Malaviya & Ors. (supra) (see internal page 4 of the order) and believed that since the co-ordinate Bench of this Court in SCR.A No.8170 of 2019 held that dispute has been adjudicated on the facts and relevant material noticed at the relevant time, now no need to examine that issue again. It is further observed by the learned Magistrate that merely the first informant has right to move application under Section 173(8) of the Code, it would not automatically lead to grant the relief therein. The Court is always at the discretion to look into the facts and materials on record and to pass necessary order. This Court does not find any illegality in the impugned order. Learned Advocate for the petitioner has failed to point out any flaw in the impugned order. Mr.Shalin Mehta, learned Senior Counsel assails the impugned order only on the ground that the learned trial Court has not noticed judgment of Vinubhai Haribhai Malaviya & Ors. (supra); but submission appears to be flaw, as Page 24 of 30 Downloaded on : Fri Apr 19 21:40:23 IST 2024 NEUTRAL CITATION R/CR.RA/10/2024 CAV JUDGMENT DATED: 18/04/2024 undefined perusal of impugned order indicates reference to the judgment of Vinubhai Haribhai Malaviya & Ors. (supra) .
12. To be noted that, Speedy trial is fundamental right of the accused. In the present case, charge-sheet is filed in the year 2016; almost 08 years have been passed yet the charge is not framed and applications of similar nature using almost similar words came to be moved by one after another by the first informant without there being any fresh material, fact and circumstances, which can be considered to be attempt to derail the trial at the behest of the first informant. No illegality or perversity is noticed in the impugned order.
13. At this juncture, I may refer to decision in case of Pooja Pal v. UOI (2016) 3 SCC 135 which speaks of the fundamental right under Article 21 of the Constitution in the context of the goal of "speedy trial" and "fair trial". Paragraph 83 and 86 reads thus:
"83. A "speedy trial", albeit the essence of the fundamental right to life entrenched in Article 21 of the Constitution of India has a companion in concept in "fair trial", both being inalienable constituents of an adjudicative process, to culminate in a judicial decision by a court of law as the final arbiter. There is indeed a qualitative difference between right to speedy trial and fair trial so much so that denial of the former by itself would not be prejudicial to the accused, when pitted against the imperative of fair trial. As fundamentally, justice not only has to be done but also must appear to have been done, the residuary jurisdiction of a court to direct further investigation or reinvestigation by any impartial agency, probe by the State Police notwithstanding, has to be essentially invoked if the statutory agency already in charge of the investigation appears to have been ineffective or is presumed or inferred to be not being able Page 25 of 30 Downloaded on : Fri Apr 19 21:40:23 IST 2024 NEUTRAL CITATION R/CR.RA/10/2024 CAV JUDGMENT DATED: 18/04/2024 undefined to discharge its functions fairly, meaningfully and fructuously. As the cause of justice has to reign supreme, a court of law cannot reduce itself to be a resigned and a helpless spectator and with the foreseen consequences apparently unjust, in the face of a faulty investigation, meekly complete the formalities to record a foregone conclusion. Justice then would become a casualty. Though a court's satisfaction of want of proper, fair, impartial and effective investigation eroding its credence and reliability is the precondition for a direction for further investigation or reinvestigation, submission of the charge-sheet ipso facto or the pendency of the trial can by no means be a prohibitive impediment. The contextual facts and the attendant circumstances have to be singularly evaluated and analysed to decide the needfulness of further investigation or reinvestigation to unravel the truth and mete out justice to the parties. The prime concern and the endeavour of the court of law is to secure justice on the basis of true facts which ought to be unearthed through a committed, resolved and a competent investigating agency.
84. As every social order is governed by the rule of law, the justice dispensing system cannot afford any compromise in the discharge of its sanctified role of administering justice on the basis of the real facts and in accordance with law. This is indispensable, in order to retain and stabilize the faith and confidence of the public in general in the justice delivery institutions as envisioned by the Constitution.
85. 78. As succinctly summarised by this Court in Committee for Protection of Democratic Right (supra), the extra ordinary power of the Constitutional Courts in directing the CBI to conduct investigation in a case must be exercised sparingly, cautiously and in exceptional situations, when it is necessary to provide credibility and instill confidence in investigation or where the incident may have national or international ramifications or where such an order may be necessary for doing complete justice and for enforcing the fundamental rights. In our comprehension, each of the determinants Page 26 of 30 Downloaded on : Fri Apr 19 21:40:23 IST 2024 NEUTRAL CITATION R/CR.RA/10/2024 CAV JUDGMENT DATED: 18/04/2024 undefined is consummate and independent by itself to justify the exercise of such power and is not inter-dependent on each other.
86. A trial encompasses investigation, inquiry, trial, appeal and retrial i.e. the entire range of scrutiny including crime detection and adjudication on the basis thereof. Jurisprudentially, the guarantee under Article 21 embraces both the life and liberty of the accused as well as interest of the victim, his near and dear ones as well as of the community at large and therefore, cannot be alienated from each other with levity. It is judicially acknowledged that fair trial includes fair investigation as envisaged by Articles 20 and 21 of the Constitution of India. Though well-demarcated contours of crime detection and adjudication do exist, if the investigation is neither effective nor purposeful nor objective nor fair, it would be the solemn obligation of the courts, if considered necessary, to order further investigation or reinvestigation as the case may be, to discover the truth so as to prevent miscarriage of the justice. No inflexible guidelines or hard-and-fast rules as such can be prescribed by way of uniform and universal invocation and the decision is to be conditioned to the attendant facts and circumstances, motivated dominantly by the predication of advancement of the cause of justice."
14. Indeed, the complainant has a right to draw the attention of the Court seeking further investigation to prevent miscarriage of justice; and to unearth the truth; but that right cannot be misused by filing repeated applications where the Court already noted the subjective satisfaction to its conscious that no further investigation is required.
15. What could be further noticed that impugned order is passed by learned Magistrate. Aggrieved by such impugned Page 27 of 30 Downloaded on : Fri Apr 19 21:40:23 IST 2024 NEUTRAL CITATION R/CR.RA/10/2024 CAV JUDGMENT DATED: 18/04/2024 undefined order, revision can be filed in Sessions Court, however, the complainant - the first informant has directly approached this Court bypassing the Sessions Court to challenge the impugned order. Of course, Section 397 of the Code provides for the concurrent jurisdiction to the Sessions Court as well as the High Court to examine correctness, legality or propriety of any finding. In case of Shri Padmanabh Keshav Kamat vs Shri Anup R. Kantak & Others reported in 1998(5)BOMCR 546 and in case of Tejram S/O. Mahadeorao Gaikwad vs Smt. Sunanda W/O Tejram Gaikwad And reported in 1996 CRILJ 172 it has been held that when two forums are available to correct alleged wrong then it will be appropriate to approach lower forum. Recently, the Hon'ble Rajasthan High Court in case of Natwar Lal vs. State [2008 (3) RajLW 2522] after referring to the decision of Hon'ble Apex Court in case of Pranab Kumar Mitra vs State of West Bengal AIR 1959 SC 144 held in paragraph 14 thus:
"The scope and ambit of Section 397 of the code is not only confined to the correctness or legality of the order but also to its propriety.
Both the Court of Sessions and Magistrate are inferior to the High Court and courts of Judicial Magistrate are inferior to the Court of Sessions Judge When an order is passed by the Sessions Judge the only remedy left with the aggrieved party is to approach the High Court under 5.397 (1) of the Code to question correctness, legality or propriety but when the same is passed by a magistrate, though power lies to both the sessions and the High Court but as a matter or prudence and propriety, it will be appropriate to first approach the lower forum except in rare and special circumstances. Such special circumstances may be where the Sessions Judge has directly or indirectly participated in the enquiry or investigation or trial or Page 28 of 30 Downloaded on : Fri Apr 19 21:40:23 IST 2024 NEUTRAL CITATION R/CR.RA/10/2024 CAV JUDGMENT DATED: 18/04/2024 undefined through his any action or order interest of justice demands that High Court alone should interfere in the order of the magistrate. "
16. Recently, the Kerala High Court in CR.RA No.839 of 2023 in case of Balamuraly G. vs. Vinod T R vide order dated 26/10/2023, in similar such facts has held in paragraph 6 thus:
"6. True, section 397 of the Code confers concurrent jurisdiction to the High Court as well as the Sessions Court to call for and examine the records of any proceedings before an inferior criminal court situated within its local jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order rendered in such proceedings. When the power of revision is concurrent, it may not be illegal for a person to approach the High Court instead of the Sessions Court with a prayer for revision of an order. A Full Bench of this Court considered in Sivan Pillai v.Rajamohan and others [1978 KLT 223] the question whether a revision, where it is maintainable in view of the provisions of Section 397(1) of the Code, in the High Court as well as Sessions Court, should be pinned down to the Sessions Court. The view taken by the majority is that the salutary principle that where concurrent jurisdiction is conferred on two fora, the lower forum should be exhausted first has to be given a go by in view of the specific provision conferring jurisdiction by Section 397(1) of the Code both on the High Court and the Sessions Courts. That is the law. But propriety demands the aggrieved, as far as possible, to first invoke the jurisdiction of the Sessions Court. It is apposite to approach the Sessions Court first for another reason also. That, the parties might be located in the Sessions Division concerned. In a revision petition any order, which causes prejudice to the accused, can be passed, in view of Section 401(2) of the Code, only after giving notice to him. Where the accused resides in a far away Sessions Division he has to be drawn to the High Court as though the matter can be heard and Page 29 of 30 Downloaded on : Fri Apr 19 21:40:23 IST 2024 NEUTRAL CITATION R/CR.RA/10/2024 CAV JUDGMENT DATED: 18/04/2024 undefined decided by the Sessions Court concerned without causing such an inconvenience. Therefore, it is just and appropriate for a party to invoke the jurisdiction of the Court of Sessions first, where the revision is possible by both the High Court and the Sessions Court, albeit there is no bar for the High Court to entertain the revision filed without exhaustion of the lower forum."
17. Without demonstrating any special circumstances, the petitioner herein instead of choosing forum of the Sessions Court for filing revision against the impugned order has filed the revision directly before this Court is another factor which runs against the petitioner. Thus, the revision fails on all counts.
18. For the foregoing reasons, as the present revision sans merit, it is dismissed. Rule is discharged.
(J. C. DOSHI,J) sompura Page 30 of 30 Downloaded on : Fri Apr 19 21:40:23 IST 2024