Madhya Pradesh High Court
Himmat Lal Shah vs The State Of Madhya Pradesh on 16 July, 2019
Equivalent citations: AIRONLINE 2019 MP 1075
-:1:-
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
SINGLE BENCH : RAJEEV KUMAR DUBEY, J
Criminal Revision No.2778/2019
Himmat Lal Shah
Vs.
State of Madhya Pradesh & Others
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Shri Kishore Shrivastava, learned Senior Counsel with Shri
Kunal Thakre, learned counsel for the applicant.
Shri Gulab Singh, learned P.L. for the respondent No.1/State.
Shri Kunal Vajani, Shri Devashish Sakalkar and Shri Nikhil
Tiwari, learned counsel for non-applicant Nos. 2 & 3.
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ORDER
Reserved on 04/07/2019 Passed on 16/07/2019 This Criminal Revision has been filed under Section 397/401 of the Cr.P.C. against the order dated 28/05/2019 passed by Sessions Judge, Jabalpur in MJCR No.563/2019, whereby learned Sessions Judge rejected the applicant's application filed under Section 408 of the Cr.P.C. for transferring the unregistered Criminal Case (Gautam Patel Vs. State of M.P.) arising out of Crime No.258/2014 registered at Police Station Lordganj, District Jabalpur for the offence punishable under Section 403, 404, 406, 411, 120B of the IPC from the Court of Chief Judicial Magistrate, Jabalpur to any other competent Court.
Digitally signed by ANURAG SONI Date: 17/07/2019 14:51:46 -:2:-2. Brief facts of the case which are relevant for the disposal of this revision are that on 22/10/2012 non-applicant Nos. 2 & 3/complainants Neena Patel and Gautam Patel filed a written complaint at Police Station Lordganj, District Jabalpur averring that Late Shri Parmanand Bhai Patel was a businessman in Jabalpur holding a vast Estate of Wealth and properties. He suffered a massive brain stroke on or around 2-3/01/1994, due to which he got paralyzed and his ailment continued till his death. It is alleged that when he was incapable of taking any decision, the co-accused persons namely Shravan Patel, Mrs. Jyotsnaben Patel, Mrs. Sonal K. Amin and Ms. Pooja Patel @ Roopa Kumar accessed the accounts of Late Shri Parmanand Bhai Patel illegally and various transactions were also done by them. On the basis of aforesaid complaint, during preliminary enquiry Police recorded the statements of complainants and also obtained account statements etc. Police also received a complaint from the Office of Wadiya Gandhi & Company, Advocates Solicitors and Notary Mumbai, wherein they narrated the facts as mentioned in the complaint dated 22/10/2012. Apart from that, it was also stated that the accused persons illegally declared that the entire estate of Late Shri Parmanand Bhai Patel was only Rs.5.54 lakhs. On the basis of aforesaid, on 02/07/2014 Police Station Lordganj, Jabalpur registered Crime No.258/2014 for the offence punishable under Sections 403, 404, 406, 411, 120-B of the IPC against the applicant and co-accused persons Shravan Patel, Mrs Jyotsnaben Patel, Mrs Sonal K. Amin and Ms Pooja Patel @ Roopa Kumar. After investigation Police filed first closure report before the Chief Judicial Magistrate, Jabalpur on 16/08/2014, which was registered as MJCR No.111/2015. In which learned CJM passed an order on 13/07/2016 and directed for further investigation on the following issues :-
Digitally signed by ANURAG SONI Date: 17/07/2019 14:51:46 -:3:-(i) Whether the partnership firm M/s Mohanlal Hargovinddas was attempted to be illegally dissolved in February, 2000 ?
(ii) Whether 10000/- shares of Mohanlal Hargovinddas Bidi Udyog Pvt. Ltd. were illegally transferred in the name of Late Mr. Parmanand Bhai Patel in the year 1996 in which the name of Mrs. Jyotsnaben Patel was wrongly entered in the year 2001 ?
(iii) Whether the shares of Late Shri Parmanand Bhai Patel in Kohinoor Tobacco Products Pvt. Ltd., U.P. Tobacco Products Pvt. Ltd., Vidarbha Tobacco Products Pvt. Ltd and Central India Tobacco Products Pvt. Ltd. were illegally transferred in the name of Mrs. Jyotsnaben Patel in the year 2001 ?
(iv) Whether the shares of Late Shri Parmanand Bhai Patel in Southern India Bidi Works Pvt. Ltd., Param Jyoti Tobacco Products Pvt. Ltd. and Anand Jyoti Trading Ltd. were illegally transferred in the name of Mrs. Jyotsnaben Patel in the year 2001 ?
(v) Whether a property of approximately 2.75 Acres in Jabalpur was illegally sold to Dr. Chau in the year 2004 ?
3. Pursuant to that, Police further investigated into the matter and on 24/01/2017 filed the second report before the learned CJM, Jabalpur, which was registered as MJC No.126/2017. Non-applicant Nos.2 & 3/complainant also filed Writ Petition No.3292/2017 for transferring the investigation of Crime No.258/2014 from Police Station Lordganj, District Jabalpur to Central Bureau of Investigation, which was rejected by the Coordinate Bench of this Court vide order dated 20/06/2017, against which non-applicant Nos. 2 & 3 preferred a Writ Appeal No.759/2017, which was disposed of by the Division Bench of this Court vide order dated 14/09/2017 with a direction to the learned Chief Judicial Magistrate, Jabalpur to take a final decision on the closure report and also the protest petition expeditiously preferably within a period of three months from the date of receipt of the copy of the order.
4. Learned CJM after recording the statements of Hardayal Singh (Investigating Officer), Gautam Patel (complainant) vide order dated 12/02/2018 again rejected the second report and remanded the matter Digitally signed by ANURAG SONI Date: 17/07/2019 14:51:46 -:4:- back for further investigation holding that all the points as directed vide order dated 13/07/2016 have not been investigated by the Police properly and directed to S.P., Jabalpur to get investigation done from a senior Police Officer who has knowledge of Company Law etc. and sufficient knowledge of English. In compliance of order dated 12/02/2018 passed by learned CJM, Jabalpur further investigation of the crime was conducted by The additional S.P., Jabalpur.
5. On 28/06/2018 learned counsel of respondent/complainant, Gautam Patel filed an application before CJM Jabalpur and requested to call the progress report of further investigation conducted by Additional S.P. (Crime), Jabalpur. On that learned CJM called the report from Investigation Officer. Investigation Officer repeatedly took time to file further investigation report and learned CJM granted time to file the final report. On 01/10/2018 Additional S.P. (Police) sought two months time to file further report. On that learned CJM fixed the case on 10/10/2018, 25/10/2018 and 12/11/2018 and thereafter the then CJM was transferred and the Court of CJM lay vacant and case was fixed for 12/11/2018, 19/11/2018, 26/11/2018 and 06/12/2018 for further orders. On 06/12/2018 for the first time, the case came up for hearing before the present CJM, against whom this transfer application was filed. The CJM fixed that case for 20/12/2018 and thereafter case was again adjourned on various dates. On 14/03/2019 for the first time, Additional S.P./Investigation Officer Rajesh Kumar Tripathi filed case diary along with a progress report before the Court and requested two months time for filing the further report. Learned CJM vide order dated 15/03/2019 granted 15 days time to file the report and fixed the case on 02/04/2019. On 02/04/2019 Investigation Officer again sought two months time, on that learned CJM directed Investigation Officer to remain present in person before the Court on every Tuesday and submit a progress report and fixed the case on Digitally signed by ANURAG SONI Date: 17/07/2019 14:51:46 -:5:- 09/04/2019. On 10/04/2019 learned CJM directed the Investigation Officer to produce report positively on 22/04/2019.
6. On 22/04/2019 Abhilash Mishra and Ashutosh Mishra appeared on behalf of Investigation Officer and informed the Court that the Investigation Officer could not appear due to his engagement in the Lok Sabha election duty and sought time for investigation. Learned CJM remarking that the Investigation Officer is not taking an interest in the investigation, directed the Investigation Officer to complete the investigation and submit a report on 04/05/2019, otherwise the Court would initiate contempt proceeding against him. Being aggrieved from that order applicant filed an application under Section 408 of Cr.P.C. for transferring the case from the Court of Chief Judicial Magistrate to another Court before Sessions Judge, which was rejected by the Sessions Judge vide order dated 28/05/2019 holding that there is no ground to assume that the learned CJM is biased and wrongly proceeded with the case. Being aggrieved from that order applicant filed this Criminal Revision.
7. Learned Senior Counsel appearing on behalf of applicant submits that it is evident from the order-sheets of the case that the learned CJM is not giving sufficient time to the Investigation Officer to investigate the matter. CJM listed the case on 14/03/2019, 15/03/2019, 02/04/2019, 08/04/2019, 09/04/2019, 10/04/2019, 22/04/2019 and 05/05/2019. On 15/03/2019 the Investigation Officer filed an application before the learned CJM and prayed that the case diary of the matter has been received by him quite recently, so at least two months' time be given to complete the investigation as the matter would require the opinion of experts. Learned CJM instead of granting reasonable time for investigation fixed the matter on 02/04/2019 with a direction to the Investigation Officer to submit a progress report of the investigation within 15 days. On 02/04/2019 Investigation Officer presented the case diary and once again sought Digitally signed by ANURAG SONI Date: 17/07/2019 14:51:46 -:6:- two months time for investigation, but the learned CJM refused to grant sufficient reasonable time to him and directed the Investigation Officer to remain present in person on every Tuesday and submit progress in the investigation and fixed the matter on 09/04/2019.
8. Learned counsel for the applicant further submitted that on 10/04/2019 case diary and report regarding progress in the investigation was submitted by the Investigation Officer through Sub-Inspector Abhilash Mishra and Ashutosh Mishra before the Court and prayed that boxes containing 10000 documents, which were submitted by the parties so, reasonable time is required to consider the documents and reach a conclusion. The investigation Officer also mentioned various events where he has been assigned other duties by the Superintendent of Police and prayed for giving reasonable time for investigation. But the learned CJM without considering the practical difficulty of the Investigation Officer once again directed the Investigation Officer to appear in person on 22/04/2019 and submit its report. On 22/04/2019 Sub-Inspector Abhilash Mishra and Ashutosh Mishra appeared on behalf of the Investigation Officer and informed the learned Chief Judicial Magistrate that the Investigation Officer could not appear due to his engagement in the Lok Sabha election duty and sought further time for investigation. On that day learned CJM remarking that the Investigation Officer, Additional Superintendent of Police is not taking an interest in the investigation directed him to complete the investigation and submit the report on 04/05/2019. Otherwise, the Court would initiate contempt proceedings against him. In the crime closure report had been filed twice by the Police so, the CJM had no right to direct the Police to present the further report as he desired.
9. Learned counsel further submitted that the applicant also filed an application in copying section and prayed for certified copies of the order sheets of the case and other documents in order to defend Digitally signed by ANURAG SONI Date: 17/07/2019 14:51:46 -:7:- his legal interests, but on the direction of the learned CJM, the applicant was denied to give certified copies of the case papers. The case file was also called back from the copying section on the instructions of CJM. Thereafter, on the direction of Sessions Judge copying department supplied the certified copies of the documents to the applicant. The applicant filed Writ Petition No.8431/2019 for quashing of the proceedings pending before CJM arising out from the Crime No.258/14 registered at Police Station Lordganj Distt. Jabalpur. In that case, the High Court vide order dated 30/04/2019 directed that no coercive action be taken against applicant/petitioner. In spite of that order of the High Court, learned CJM did not stop the proceedings of the case. The attitude of learned CJM shows that he wanted that charge-sheet is anyhow filed by the Police in the matter. Applicant believes that due to such compulsive orders of the learned CJM the Police may falsely implicate applicant and others in the crime. So, the Criminal Case (Gautam Patel Vs. State of M.P.) arising out of Crime No.258/2014 registered at Police Station Lordganj, District Jabalpur be transferred from the Court of CJM, Jabalpur to any other competent Court.
10. In this regard learned senior counsel of the applicant also placed reliance on the judgments of Hon'ble Apex Court passed in the cases of State of W.B. v. Shivananda Pathak, (1998) 5 SCC 513, Kumaon Mandal Vikas Nigam Ltd. Vs. Girja Shankar Pant & Others, (2001) 1 SCC 182, N.K. Bajpai Vs. Union of India & Another, (2012_) 4 SCC 653, Abhinandan Jha & Others Vs. Dinesh Mishra, AIR 1968 SC 117, M.C. Abraham & Another Vs. State of Maharashtra & Others, (2003) 2 SCC 649 and Kanaklata Vs. State (NCT of Delhi) & Others, (2015) 6 SCC 617.
11. Learned counsel for non-applicants Nos.2 & 3/complainants opposed the prayer and submitted that the trial Court has a right to monitor the investigation under Section 156(3) of the Cr.P.C.
Digitally signed by ANURAG SONI Date: 17/07/2019 14:51:46 -:8:-conducted by the Police. CJM/Magistrate also has a right to direct the Police for further investigation of crime on the filing of closure report by the Police after investigation of the crime. He further submitted that the learned CJM only directed the Investigation Officer to file the final report as early as possible. Learned CJM did not direct the Investigation Officer to file charge-sheet and he did not pass any order against the applicant. Police has already taken sufficient time to investigate the crime since the investigation is pending from the year 2014. So, only on the basis that CJM directed to the Investigation Officer to file the final report within a stipulated time, it cannot be said that the learned CJM is biased. The apprehension of the applicant that the Judge is biased is baseless.
12. He further submits that the Investigation Officer himself in his report dated 14/03/2019 mentioned that it appeared to him that alleged offence was committed. So the apprehension of the applicant that the Police is trying to somehow close the investigation by implicating the applicant and others due to the pressure of CJM appears to be baseless. On the contrary, it appears from the record that the investigation of the crime is going on from the year 2014. The last time the then CJM passed the order to file further investigation report on 12/02/2018, while applicant filed an application for the transfer of the proceedings on 30/04/2019 after filing of the said report by the Investigation Officer, which clearly shows that applicant has filed this transfer petition to hinder the progress of the investigation. Police have already taken sufficient time to investigate the crime, since the investigation is pending from the year 2014. So on the basis that learned CJM directed to the Investigation Officer to file final report within the stipulated period, it can not be said that learned CJM is biased and he is repeatedly pressurizing the Investigation Officer with the intention that anyhow he files charge-sheet in the case. So apprehension of the applicant is Digitally signed by ANURAG SONI Date: 17/07/2019 14:51:46 -:9:- baseless and learned Sessions Judge did not commit any mistake in rejecting the applicant's transfer application and prayed for rejection of this revision. In this regard he also placed reliance upon the judgments of Hon'ble Apex Court passed in the cases of Usmangani Adambhai Vahora Vs. State of Gujrat & Another, (2016) 3 SCC 370 and Sakiri Vasu Vs. State of Uttar Pradesh & Others, (2008) 2 SCC 409.
13. This Court has gone through the record and the arguments advanced by the learned counsel for both parties.
14. From the judgments of Hon'ble Apex Court passed in the cases of State of W.B. v. Shivananda Pathak (Supra), Kumaon Mandal Vikas Nigam Ltd. Vs. Girja Shankar Pant & Others (Supra) and N.K. Bajpai Vs. Union of India & Another (Supra) relied upon by the learned counsel of the applicant and the judgment of Hon'ble Apex Court passed in Usmangani Adambhai Vahora Vs. State of Gujarat & Another (Supra) relied upon by the learned counsel for the non-applicant Nos.2 & 3, it emerges that when it appears from the record that the Judge is biased or complainant/accused has a reasonable apprehension that he could not get justice from the Court, where the case should be transferred to other Court, but whether the Judge is biased or not is a matter of fact. It will be considered in the facts and circumstances of each given case. The correct test would be to examine whether there appears to be a real danger of bias or whether there is only a probability or even a preponderance of probability of such bias, in the circumstances of a given case. If it falls in the first category, the decision would attract judicial chastisement, but if it falls in the latter, it would hardly affect the decision, much less adversely. The power of transfer has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to trial. There has to be a real apprehension that there would be a miscarriage of justice. If only Digitally signed by ANURAG SONI Date: 17/07/2019 14:51:46 -:10:- irregularity and delay in the trial is found, the proper course to be followed by the superior Court is to rectify the errors. Not transfer the case to another Judge.
15. If we examined the instant case in the light of above pronouncement of the Hon'ble Apex Court it appears from the record that the instant case came up for hearing before the learned CJM for the first time on 06/12/2018, against which the transfer application has been filed. On that day in his order learned CJM only mentioned that "the case appears to be related to the crime of serious nature, so it is appropriate to hear both sides before the decision of application"
and fixed the case on 20/12/2018. That remark of the CJM was based on the allegations levelled by the complainant in his complaint.
16. The applicant did not mention in his petition as to when he filed the application to get the certified copies of the order-sheets and documents of the case and when he did receive the same. On the contrary, from the endorsement of the copyist annexed in the petition at page No.590, it appears that the applicant had filed the copying application No.12604/2019 on 23/04/2019 and received the copy on 24/04/2019.
17. It also appears from the record that in the Writ Petition No.8431/2019, applicant also sought the relief to stay the proceedings of the case pending before CJM and the investigation of the Crime No.258/14 registered at Police Station Lordganj, District Jabalpur, but the Coordinate Bench of this Court vide order dated 30/04/2019 only directed the respondent not to take any coercive action against applicant/petitioner. Which clearly shows that the Coordinate Bench of this Court vide order dated 30/04/2019 did not accept these prayers of the applicant and neither directed to stay the proceedings of the case pending before CJM, nor stayed the further investigation of the crime. The Court only directed that no coercive action be taken against the applicant/petitioner during the pendency Digitally signed by ANURAG SONI Date: 17/07/2019 14:51:46 -:11:- of the petition. So there was no obligation on the CJM, Jabalpur to stop the proceedings of the case pending before him arising out from the Crime No.258/14 registered at Police Station Lordganj, Distt. Jabalpur.
18. It is also apparent from the record that after filing of closure report by the Police in the crime, the further investigation of the crime was directed by the predecessor of the present CJM, not by the present CJM. The present CJM only directed the Investigation Officer to file the final report in compliance with the order earlier passed by his predecessor. Present CJM did not direct the Investigation Officer to file the charge-sheet, but only to file the final report.
19. The Hon'ble Apex Court in the case of Abhinandan Jha & Others Vs. Dinesh Mishra, (Supra) only held that "there is no power, expressly or impliedly conferred, under the Code, on a Magistrate to call upon the police to submit a charge-sheet, when they have sent a report under s. 169 of the Code, that there is no case made out for sending tip an accused for trial." In this case the Hon'ble Apex Court, has not held that after the filing of a closure report by the Police before Magistrate, it cannot direct the Police to file further investigation report. On the contrary Apex Court in para 15 of the judgements observed that :-
"15. Then the question is, what is the position, when the Magistrate is dealing with a report submitted by the police, under Section 173, that no case is made out for sending up an accused for trial, which report, as we have already indicated, is called, in the area in question, as a 'final report'? Even in those cases, if the Magistrate agrees with the said report, he may accept the final report and close the proceedings. But there may be instances when the Magistrate may take the view, on a consideration of the final report, that the opinion formed by the police is not based on a full and complete investigation, in which case, in our opinion, the Magistrate will have ample jurisdiction to give directions to the police, under Section 156(3), to make a further investigation. That is, if the Magistrate feels, after Digitally signed by ANURAG SONI Date: 17/07/2019 14:51:46 -:12:- considering the final report, that the investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation, under Section 156(3). The police, after such further investigation, may submit a charge-sheet, or, again submit a final report, depending upon the further investigation made by them. If, ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he can take cognizance of the offence, under Section 190(1)(b), notwithstanding the contrary opinion of the police, expressed in the final report."
20. In the case of M.C. Abraham & Another Vs. State of Maharashtra & Others, (Supra), also Hon'ble Apex Court held as under:-
"17. The principle, therefore, is well settled that it is for the investigating agency to submit a report to the Magistrate after full and complete investigation. The investigating agency may submit a report finding the allegations substantiated. It is also open to the investigating agency to submit a report finding no material to support the allegations made in the first information report. It is open to the Magistrate concerned to accept the report or to order further enquiry. But what is clear is that the Magistrate cannot direct the investigating agency to submit a report that is in accord with his views."
21. Hon'ble Apex Court in the case of Sakiri Vasu Vs. State of Uttar Pradesh & Others (supra) held that if a person has a grievance that the police station is not registering his FIR under Section 154 Cr.P.C., then he can approach the Superintendent of Police under Section 154(3) Cr.P.C. by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156 (3) Cr.P.C. before the learned Magistrate concerned. If such an application under Section 156 (3) Cr.P.C. is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, Digitally signed by ANURAG SONI Date: 17/07/2019 14:51:46 -:13:- according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.
22. From the above pronouncements of the Hon'ble Apex Court it is clear that if the Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation. The Magistrate also has the power to monitor the investigation under Section 156(3) of the Cr.P.C. If doing so is necessary in the facts and circumstances of the case. In this case, also learned CJM did not direct the Investigation Officer to file charge-sheet, but only to submit further investigation report. So, the arguments of the learned counsel of the applicant that the Magistrate has no right to direct the Investigating Officer to conduct further investigation and file further investigation report or to himself monitor the investigation, do not appear to be correct.
23. It also appears from the record that Police registered Crime No.258/2014 in the year 2014, while the investigation of the crime is still pending. The then CJM Jabalpur vide order dated 12/02/2018 directed the Police to present the further investigation report, but Police has not filed further investigation report as yet. So, only on the basis that the learned Judge repeatedly fixed the case within a short interval and directed the Investigation Officer to file final report and cautioned the Investigation Officer to take action against him if he failed to file final report on the date fixed, it cannot be said that the Judge is biased and wants the Police to anyhow file charge- sheet in the case. From the order sheets of the case it only appears that the concern of the learned CJM was that the Investigation Officer submitted the final report as early as possible and nothing else.
Digitally signed by ANURAG SONI Date: 17/07/2019 14:51:46 -:14:-24. Any casual observations made by a Presiding Officer of the trial Court would not be a sufficient ground for transfer for the reason that the trial Courts work in a charged atmosphere and they do not have the benefit of a detached atmosphere of the higher Courts so as to think coolly and decide patiently. Every error, however gross it may look, should not, therefore, be attributed to improper motive as held by the Hon'ble Apex Court in the case of KP Tiwari Vs state of MP, 1994 Supp(1) SCC 540.
25. In the considered opinion of this Court, there is no sufficient ground for transferring the case. So learned Sessions Court did not commit any mistake in rejecting the applicant's application.
26. Hence this revision is dismissed.
27. But simultaneously looking to facts and circumstances of the case, it is expected from the trial Court to give a time of four months to the Investigation Officer to whom the investigation is handed over recently by the Superintendent of Police, Jabalpur by which he could study the documents which are said to be very high in number and he could collect the original documents. Thereafter, proceed with the case according to law.
Certified copy as per rules.
(Rajeev Kumar Dubey) Judge as/ Digitally signed by ANURAG SONI Date: 17/07/2019 14:51:46