Madhya Pradesh High Court
Dr. Neena V. Patel vs The State Of Madhya Pradesh on 20 June, 2017
HIGH COURT OF MADHYA PRADESH : JABALPUR
SINGLE BENCH : JUSTICE MS.VANDANA KASREKAR
WRIT PETITION NO.3292/2017
Dr. Neena V. Patel and another
Vs.
State of Madhya Pradesh
Shri Madhav Khurana, Shri Nikhil Tiwari and Shri
Pranay Goyal, learned counsel for the petitioners.
Shri Sanjay Dwivedi, learned Dy. Advocate General for
the respondent.
ORDER
(20/06/2017) The petitioners have filed the present writ petition praying for following reliefs :
"a). Call for the records in Crime
No.258/2014 Police Station Lordganj,
Jabalpur, M.P. and pass appropriate
directions/writ rejecting the second Closure Report dated 24th January, 2017 filed by the Respondent with the Ld.Chief Judicial Magistrate, Jabalpur, Madhya Pradesh in Crime No.258/14 registered with Police Station Lordganj, Jabalpur, M.P.;
b). pass appropriate directions/writ
transferring the investigation in Crime
No.258/14 from Thana Lordganj, Jabalpur to 2 the Central Bureau of Investigation so that a fair, proper and impartial investigation can be conducted in the matter in a time-
bound manner; and
c) pending the hearing and disposal of
the instant Writ Petition, stay further proceedings in Crime No.258/2014 Police Station, Lordganj, Jabalpur, MP before the Ld. Chief Judicial Magistrate, Jabalpur;
d) grant such further and other reliefs as the facts and circumstances of the case may require and pass any order that this Hon'ble Court may deem fit in the interest of justice, equity and good conscience."
2. Late Parmanandbhai Patel was a businessman in Jabalpur holding a vast estate of wealth and properties. He had suffered a massive brain stroke and was thereafter admittedly in a vegetative state and 80% blind till the time of his death on 15/05/2005. The bank accounts and lockers of late Parmanandbhai Patel were accessed and monies/properties/shares/wealth of late Parmanandbhai Patel was illegally siphoned away/transferred/alienated while he was in a vegetative state and 80% blind and even after his 3 demise. The petitioners, therefore, filed a complaint on 22/10/2012 with Lordganj Police Station, Jabalpur against the accused persons for commission of offences punishable under Sections 34, 120-B, 403, 404, 406 and 411 of IPC for offences of dishonest misappropriation of property possessed by a deceased person at the time of his death and it is dishonestly receiving stolen property by various means including operation of bank accounts and lockers of late Parmanandbhai Patel. After a period of two years of filing of complaint, an FIR was lodged on 02/07/2014 by the concerned Police Station. The accused thereafter filed an application under Section 438 of Cr.P.C. before the Court of Session on 12/08/2014. The said application was dismissed as withdrawn on 14/08/2014. Thereafter on 16/08/2014, the respondent had filed first closure report before Chief Judicial Magistrate, Jabalpur on the ground that no witness had come forward. Petitioner No.2 had contested the first closure report before the CJM. The petitioners had filed an application under Section 173(8) read with Section1 156(3) of Cr.P.C. before the CJM. On 13/07/2016 CJM passed an order thereby rejecting the first closure report and directed for 4 further investigation in the matter on the issues which have been referred in the order. On 05/08/2016 a notice was issued to the petitioners under Section 91 of Cr.P.C. calling upon the petitioners to respond the queries raised by the CJM in the order dated 13/07/2016. Petitioner No.2 has submitted a letter along with record to the respondent. The petitioner also submitted a written reply to the incident along with information and documents. On 24/01/2017 the respondent filed a second closure report with the CJM for closing the investigation in the complaint. Being aggrieved by this second closure report, the petitioners have filed the present writ petition.
3. Learned counsel for the petitioner submitted that the action of the respondent in submitting a second closure report with the CJM is illegal and arbitrary. He submitted that no fair investigation is being conducted by the respondent and, therefore, the investigation is required to be done by the independent agency. He submitted that neither in the first closure report nor in the second closure report, the Police has investigated in the medical condition of late Parmanandbhai Patel. The Police failed to register an FIR on the complaint 5 filed by the petitioners for almost two years. Within a period of a month and 12 days of registration of FIR and within four days of withdrawal of application for anticipatory bail by the accused, the Police has filed a closure report on the ground that no witness came forward in the investigation. In spite of the order passed by the CJM on 13/07/2016, no proper investigation was conducted by the Police into the complaint and, therefore, first closure report was rejected and further investigation was directed. It has further been argued that despite clear direction of the CJM in the order dated 13/07/2016, Police failed to conduct any investigation in the second round. The entire second closure report appears to have been prepared by the Police on the basis of the statement of one Himmatlal Shah, 86 years old man who, himself, part of fraud, as was clearly and repeatedly informed to the Police by the petitioners. From perusal of the case diary it shows that the Police had hurriedly filed the second closure report and had hardly investigated into any of the allegations in the complaint/specific issues directed to be investigated into by the Chief Judicial Magistrate. The Investigating Officer had admittedly not conducted investigation into share transfer 6 documents which are in English as he is admittedly incapable of understanding English language.
4. Learned counsel for the petitioners furthers submitted that the accused persons belong to very influential family. One of the accused persons Shravan Patel was a member of the State Legislative Assembly and a Minister and a member of the cabinet. Shravan Patel's son namely Nishith Patel was also a member of the Congress and Member of the Legislative Assembly, Madhya Pradesh between 2003-2013. Sonal Amin is a member in Women's Commission in Government of Madhya Pradesh, a member of Parivar Paramarsh Kendra of M.P. Police at Jabalpur. Therefore, it is not surprising that the Police had done such a sham investigation in the matter as the Police functionaries in the State of Madhya Pradesh are clearly under the pressure and influence of the accused persons and other family members. A fair and transparent investigation into the offences committed with relation to the estate of late Parmanandbhai Patel is, therefore, impossible at the hands of the Police in the State of Madhya Pradesh. The second closure report is completely devoid of any merit. In such circumstances, 7 learned counsel for the petitioners submitted that investigation may be transferred from Police to CBI for fair investigation into the matter. For the said purpose, learned counsel relied upon the judgment delivered by the Apex Court in the case of Dharam Pal Vs. State of Haryana and others reported in (2016) 4 SCC 166 and Division Bench decision of this Court in the case of Mahesh Garg Vs. State of M.P., reported in 2012 SCC Online MP 9381.
5. On the other hand, respondent has filed reply and in the reply the respondent has stated that the petition is a pre- mature petition, therefore, this petition may be dismissed on the ground that it is a pre-mature petition for the reason that the first closure report has been submitted by the respondent before the Chief Judicial Magistrate on 18/08/2014 but the same was not accepted by the Court and the Court vide order dated 13/07/2016 has directed the respondent for reinvestigation. In compliance of the direction issued by the Court, the respondent further investigated the matter on the points/issues framed by the Court and again submitted a closure report on 24/01/2017 and the Court has not passed any order on the said closure report which is still pending 8 consideration. Thus, as no order has been passed by the Court on this closure report, this petition is not maintainable. The petitioners can appear before the Court below and oppose the closure report. It has further been stated that if the closure report is accepted by the Court, remedy under the Criminal Court is available to the petitioners to challenge the order of the Court, therefore, the said writ petition may be dismissed. Learned counsel for the respondent relied upon the judgment passed by the Apex Court in the case of State of West Bengal and others Vs. Committee for Protection of Democratic Rights, West Bengal and others, reported in (2010) 3 SCC 571 for investigation by the CBI as well as the Division Bench judgment of this Court in the case of O.P. Yadav Vs. State of M.P. and others, passed in W.P. No.17302/2016(PIL).
6. I have heard learned counsel for the parties and perused the record. From perusal of the record, it reveals that the petitioners had filed a complaint before Lordganj Police Station, Jabalpur against accused persons alleging commission of offences under Sections 34, 120-B, 403, 404 and 411 of IPC. On the basis of the said complaint, FIR was 9 lodged in the said Police Station on 02/07/2014. After investigation, respondent had filed first closure report on 16/08/2014. The petitioners had filed an application before the concerned Magistrate contesting first closure report. They have also filed an application under Section 173(8) read with Section 156(3) of Cr.P.C. before CJM. The Chief Judicial Magistrate had passed an order on 13/07/2016 thereby rejecting the first closure report and directed for further investigation in the matter on following issues :
"a) Whether the partnership firm M/s Mohanlal Hargovinddas was attempted to be illegally dissolved in February, 2000 ?
b) Whether 10,000 shares of Mohanlal Hargovinddas Bidi Udyog Pvt. Ltd. were illegally transferred in the name of late Mr. Parmanandbhai Patel in the year 1996 in which the name of Mrs. Jyotsnaben Patel was wrongly entered in the year 2001 ?
c) Whether the shares of late Mr. 10 Parmanandbhai 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 ?
d) Whether the shares of late Mr. Parmanandbhai Patel in Southern India Bidi Works Pvt. Ltd., Param Jyoti Tobacco Products Pvt. Ltd. and Akhand Jyoti Trading Ltd were illegally transferred in the name of Mrs. Jyotsnaben Patel in the year 2001 ? and
e) Whether a property of approximately 2.75 Acres in Jabalpur was illegally sold to Dr. Chau in the year 2004 ?"
7. After the order passed by Chief Judicial Magistrate, the respondent had issued a notice under Section 91 to the petitioners calling upon the petitioners to respond to the queries raised by CJM in the order dated 13/07/2016. On 11 10/08/2016 the petitioners submitted a written response to the notice under Section 91 of Cr.P.C. On 24/01/2017 respondent filed second closure report with the CJM closing investigation in the complaint. Being aggrieved by this second closure report, the petitioners have filed the present writ petition. Learned counsel for the petitioner argued that the investigation done by the Police is improper and also that the accused persons who belong to an influential family, therefore, the investigation may be transferred to CBI. He also argued that the direction for further investigation would be completely ineffective because the Police has already conducted the investigation and has submitted twice closusre report. After first closure report, it would be against the interest of justice to send the petitioners back to the Court of Chief Judicial Magistrate. He relied upon the judgment passed by the Apex Court in the case of Dharam Pal (supra) and submitted that the power of constitutional Courts to direct further investigation or de novo or fresh investigation or reinvestigation by some other investigating agency cannot be an absolute impediment for exercising said constitutional power and such power is meant to ensure fair and just 12 investigation. Learned counsel for the petitioners further relied upon the judgment of the Division Bench of this Court in the case of Mahesh Garg (surpa) in which the Division Bench was faced with almost identical facts wherein a closure report had already been filed and were pending and, therefore, the petition seeking transfer of investigation was claimed to be premature by the State. However, in its judgment, the High Court noted the poor nature of the investigation done by the police and the conscious attempts on the part of the Police to save the culprits and thereafter directed further investigation by the CBI. The High Court further held that pendency of the closure report before the concerned Court did not bar the High Court from transferring investigation and that the same would not come in the way of the protest petition being decided by the appropriate Court in accordance with law. Thus, in light of aforesaid judgment, he submitted that the investigation be transferred to CBI.
8. Learned counsel for the petitioners also relied upon the judgment passed by the Apex Court in the case of K.V. Rajendran Vs. CBCID, reported in (2013) 12 SCC 480. So far as the judgment relied by learned counsel for the 13 petitioner, the same would not be applicable in the present case. In the case of Dharam Pal (supra), the Apex Court has held that in a rare to rarest case direction can be issued for investigation by some other investigating agency. The purpose is there has to be fair investigation and fair trial. The direction for further investigation by another agency has to be very sparingly issued, therefore, looking to the peculiar facts of the case, the Apex Court has directed for investigation by some other agency. So far as the case of Mahesh Garg (supra) is concerned, in that case public interest was involved in the matter as the huge commercial building was constructed in violation of master plan, therefore, the public interest was involved in the matter and then the Division Bench of this Court has directed for investigation by the CBI.
9. In the case of Committee for protection of democratic rights (supra) in para-68 the Apex Court has held as under :
"68. Thus, having examined the rival contentions in the context of the Constitutional Scheme, we conclude as follows:
(i) The fundamental rights, enshrined in Part 14 III of the Constitution, are inherent and cannot be extinguished by any Constitutional or Statutory provision. Any law that abrogates or abridges such rights would be violative of the basic structure doctrine. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account in determining whether or not it destroys the basic structure.
(ii) Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law. The said Article in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain situations even a witness to the crime may seek for and shall be granted protection by the State.
(iii) In view of the constitutional scheme and the jurisdiction conferred on this Court under Article 32 and on the High Courts under Article 226 of the Constitution the power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the powers 15 of the Constitutional Courts with regard to the enforcement of fundamental rights. As a matter of fact, such a power is essential to give practicable content to the objectives of the Constitution embodied in Part III and other parts of the Constitution. Moreover, in a federal constitution, the distribution of legislative powers between the Parliament and the State Legislature involves limitation on legislative powers and, therefore, this requires an authority other than the Parliament to ascertain whether such limitations are transgressed. Judicial review acts as the final arbiter not only to give effect to the distribution of legislative powers between the Parliament and the State Legislatures, it is also necessary to show any transgression by each entity. Therefore, to borrow the words of Lord Steyn, judicial review is justified by combination of "the principles of separation of powers, rule of law, the principle of constitutionality and the reach of judicial review".
(iv) If the federal structure is violated by any legislative action, the Constitution takes care to protect the federal structure by ensuring that Courts act as guardians and interpreters of the Constitution and provide remedy under Articles 32 and 226, whenever there is an attempted violation. In the circumstances, any direction by the Supreme Court or the High Court in exercise of power under Article 32 16 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure.
(v) Restriction on the Parliament by the Constitution and restriction on the Executive by the Parliament under an
enactment, do not amount to restriction on the power of the Judiciary under Article 32 and 226 of the Constitution.
(vi) If in terms of Entry 2 of List II of the Seventh Schedule on the one hand and Entry 2A and Entry 80 of List I on the other, an investigation by another agency is permissible subject to grant of consent by the State concerned, there is no reason as to why, in an exceptional situation, court would be precluded from exercising the same power which the Union could exercise in terms of the provisions of the Statute. In our opinion, exercise of such power by the constitutional courts would not violate the doctrine of separation of powers. In fact, if in such a situation the court fails to grant relief, it would be failing in its constitutional duty.
(vii) When the Special Police Act itself provides that subject to the consent by the State, the CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State Police, the 17 court can also exercise its constitutional power of judicial review and direct the CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the Constitutional Courts. Therefore, exercise of power of judicial review by the High Court, in our opinion, would not amount to infringement of either the doctrine of separation of power or the federal structure."
10. Thus, the Apex Court time and again in various cases has considered the issue of handing over investigation of criminal cases to an independent agency like CBI and all these principles were recently considered by the Supreme Court in the Case of Pooja Pal Vs. Union of India and others, reported in (2016) 3 SCC 135. In the aforesaid case after considering all the judgments on the question from para- 50 onwards, the law has been summarized by the Apex Court. 18 In paras-50 to 75 of the said judgment, the Apex Court has held that the extraordinary power of the constitutional Courts under Articles 32 and 226 of the Constitution of India qua the issuance of direction to CBI to conduct investigation must be exercised with great caution has been underlined in Committee for Protection of Democratic Rights, (2010) 3 SCC 571. Observing that although no inflexible guidelines can be laid down in such regard, it was highlighted that such an order cannot be passed as a matter of routine or merely because the party has levelled some allegations against the local police and can be invoked in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigation or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and for enforcing the fundamental rights. Thus, in these paragraphs, law has been summarized by the Supreme Court by holding that while exercising extraordinary jurisdiction, the Constitutional Court under Article 32 and 226 of the Constitution of India in the matter of issuing direction to CBI to conduct investigation was exercised jurisdiction with great 19 caution as has been underlined in the case of Committee for protection of democratic rights (supra). The Supreme court has held that although no inflexible guidelines can be laid down in such regard, but it is emphasized that such an order cannot be passed as a matter of routine or merely because the party has levelled some allegations against the local police or any person of authority. It has been laid down by the Supreme Court that the power can be exercised in exceptional situations where it becomes necessary to provide credibility and instil confidence into the investigation or where the incident may have national or international ramifications or it is required for doing complete justice and for enforcing the fundamental rights. In the case of Committee for protection of democratic rights (supra), it has been held by the Apex Court that the power, extraordinary in nature, available under Article 226 of the Constitution must be exercised sparingly, cautiously and in exceptional situations. It has further been observed that if such a power is exercise in each and every case, the CBI would be flooded with a large number of cases and with it limited resources, may find it difficult to properly investigate 20 even serious cases. In the present case, from perusal of the facts, it reveals that it appears to be a family dispute between the parties and it does not involve national and international ramifications. Chief Judicial Magistrate has not yet accepted second closure report and the petitioners are, therefore, at liberty to raise all the objections which are raised before this Court, before the Chief Judicial Magistrate and it is not a fit case of which an investigation is to be handed over to the CBI. Thus, in light of the principles laid down by the Supreme Court and on the basis of the material available on record, I do not find any reason to interfere into the matter.
11. Accordingly, the writ petition is dismissed without any order as to cost.
(Ms. Vandana Kasrekar) JUDGE ts