Gujarat High Court
Dhansukhbhai Ambalal Jinvala vs State Of Gujarat on 3 March, 2022
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
R/SCR.A/1510/2005 JUDGMENT DATED: 03/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 1510 of 2005
With
R/SPECIAL CRIMINAL APPLICATION NO. 144 of 2010
With
CRIMINAL MISC.APPLICATION (FOR FIXING DATE OF HEARING) NO. 1 of
2021
In R/SPECIAL CRIMINAL APPLICATION NO. 144 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
========================================================
1 Whether Reporters of Local Papers may be allowed to see the No
judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the judgment No
?
4 Whether this case involves a substantial question of law as to the No
interpretation of the Constitution of India or any order made
thereunder ?
========================================================
DHANSUKHBHAI AMBALAL JINVALA & 8 other(s)
Versus
STATE OF GUJARAT & 12 other(s)
========================================================
Appearance:
MR AD SHAH(733) for the Applicant(s) No. 1,3,6,7,8,9
MR KETAN D SHAH(1356) for the Applicant(s) No. 2,5
MR NITIN AMIN FOR MR SANJAY M AMIN(130) for the Applicant(s) No.
1,3,4,6,7,8,9
for the Respondent(s) No. 9
MR MEHUL SHARAD SHAH(773) for the Respondent(s) No. 3
MR RUSHABH R SHAH(5314) for the Respondent(s) No. 3,4,5,6,7
MS MAITHILI D MEHTA ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 10,11,12,13,2
========================================================
CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 03/03/2022
ORAL JUDGMENT
1. Heard learned Advocate Mr. Nitin Amin on behalf of the petitioners, learned Additional Public Prosecutor Ms. Maithili D. Mehta on behalf of Page 1 of 13 Downloaded on : Sat Dec 24 12:05:14 IST 2022 R/SCR.A/1510/2005 JUDGMENT DATED: 03/03/2022 respondent no.1- State and learned Advocate Mr. Rushabh Shah on behalf of respondents no.4 to 7 in both the petitions.
2. Issue Rule in Special Criminal Application No. 144 of 2010 returnable forthwith. Learned Advocates for the respective parties waive service of rule on behalf of the respective respondents.
3. In the first petition being Special Criminal Misc. Application No. 1510 of 2005, the following prayers have been sought for:
"8(A) That this Hon'ble Court will be pleased to issue appropriate writ, order or direction in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the impugned FIR at Annexure - A bearing C.R. No. I- 202 of 2005 filed by respondent No.3 herein in Umra Police Station for the alleged offences punishable under Sections 406, 420, 462, 468, 471, 120B and 114 of the Indian Penal Code.
(B) That this Hon'ble Court will be pleased to issue appropriate writ, order or direction in the nature of mandamus or any other appropriate writ, order or direction directing respondents Nos. 1 and 2 not to investigate into the FIR at Annexure- A bearing C.R. No. I-
202 of 2005 filed by respondent No.3 herein in Umra Police Station.
3.1 In the second petition being Special Criminal Application No. 144 of 2010, following prayers have been sought for:
"7(A) To quash and set aside the order passed by the learned Chief Judicial Magistrate, Surat on 02.01.2008 in M.Case No. 6 of 2005 and C.R. No. I- 202 of 2005 registered with Umra Police Station, which is confirmed by the 5th Additional District & Sessions Judge, Surat on 30.12.2009 in Criminal Revision Application No. 231 of 2008;
(B) To direct the investigating officer of CID( Crime & Railways),
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R/SCR.A/1510/2005 JUDGMENT DATED: 03/03/2022
State of Gujarat, Gandhinagar to carry out further investigation under Section 173(8) of the Cr.P.C in M. Case No. 6 of 2005 and submit appropriate report in accordance with law.
(C) To direct the Investigating Officer of CID ( Crime & Railways), State of Gujarat, Gandhinagar to carry out further investigation under Section 173(8) of Cr.P.C in C.R. No. I- 202 of 2005 registered with Umra Police Station and submit appropriate report in accordance with law."
4. Since the issue relates to the very selfsame property and very selfsame transaction also, both petitions were heard together.
5. The facts leading to filing of both the petitions are narrated hereinbelow in brief:
It appears that a land bearing Survey No. 47/1 located at Village:
Rumbh, Taluka Choryasi, District: Surat was of the ownership of respondents no. 4 to 13 in Special Criminal Application No. 1510 of 2005 and whereas the said land owners had executed an agreement to sale in favour of the petitioners of Special Criminal Application No. 1510 of 2005 on 11.10.1988. It appears that after the agreement to sale, the Surat Urban Development Authority had placed the land under reservation in the month of August 1989. It appears that the petitioners had preferred a Civil Suit being Regular Civil Suit No. 175 of 1999 before the learned Civil Court at Surat praying for specific performance against the land owners on the basis of agreement to sale entered into between the parties. It appears that the suit had been contested for a while and thereafter the parties had reached a settlement and whereas based upon the settlement, consent decree had been passed by the the concerned learned Civil Court on 03.11.2004. It appears that the reservation of the Urban Development Authority had been Page 3 of 13 Downloaded on : Sat Dec 24 12:05:14 IST 2022 R/SCR.A/1510/2005 JUDGMENT DATED: 03/03/2022 removed in the month of September 2004 and thereafter, the original land owner had entered into a sale-deed with the petitioners of Special Criminal Application No. 1510 of 2005 on 10.11.2004.
It appears that after the sale-deed had been entered into between the parties, the original land owners had been served with a notice dated 03.03.2005 from the office of Collector, Surat under Section 108 (6) of the Gujarat Land Revenue Code inviting objection against mutation of entry with regard to two sale-deeds executed on basis of power of attorney in favour of one Bhimjibhai Chhaganbhai Kevadiya - respondent no.3 in Special Criminal Application No. 1510 of 2005. It is at this stage that the original land owners as well as petitioners claim that they had come to know about two sale-deeds executed on basis of Power of Attorney as well as the sale-deeds dated 08.10.1999 and 15.05.2000 with regard to the land in question. That since the original land owners were of the opinion that a forgery had been committed in the Power of Attorney more particularly since respondents no. 6 and 7 were stated to be posted in Burnpur, West Bengal on the day the Power of Attorney had been signed by them and not in Surat and therefore one of the land owners i.e. respondent no.5 filed a private complaint against respondent no.3 and others on 26.04.2005 for offences punishable under Sections 465, 467, 471, 34, 120B and 114 of the Indian Penal Code. It appears that the complaint had been registered as Inquiry Case No. 20 of 2005 before the concerned learned Magistrate and whereas orders were issued for directing the Umra Police Station, Surat to investigate with regard to allegations made in the complaint which came to be registered as M Case No. 6 of 2005 with the same police station. It appears that on the very next day on 27.04.2005 respondent no.3 herein lodged an FIR being C.R. No. I- 202 of 2005 with the Umra Police Station against the present petitioners and land owners inter alia alleging offences punishable under Sections 406, 420, 467, 468, 471 , 120B and 114 of the Indian Penal Code, the allegation being that he had purchased the land in Page 4 of 13 Downloaded on : Sat Dec 24 12:05:14 IST 2022 R/SCR.A/1510/2005 JUDGMENT DATED: 03/03/2022 question through Power of Attorney Holder of the land owners. The said impugned FIR is challenged by way of Special Criminal Application No. 1510 o 2005.
6. It appears that the matter did not rest there. The petitioner no.8 of Special Criminal Application No. 1510 of 2005 since there appeared to be some lacuna in the investigation had preferred a representation to the Director General of Police, Gujarat State, requesting for transfer of investigation. It appears that the Director General of Police finding substance in the representation had transferred the investigation to CID Crime, Gujarat State. It further appears that upon coming to know about the order passed by the Director General of Police the then Inspector of the Police Station in question, had filed an incomplete charge-sheet against the petitioners of Special Criminal Application No. 1510 of 2005 and whereas insofar as the M case No. 6 of 2005 preferred in favour of the land owners, a report had been submitted for accepting 'B' Summary with regard to the same.
6.1 It appears that at that stage petitioner no.8 of Special Criminal Application No. 1510 of 2005 had preferred Criminal Misc. Application No. 10436 of 2007 before this Court inter alia requesting return of original papers of 'B' Summary and also for direction to the Magistrate transfer of investigation to a different agency. It was further prayed that appropriate order may be passed directing the CID ( Crime and Railway), Gujarat State to complete the investigation under Section 173(8) of Cr.P.C.
7. This Court ( Coram: M.R. Shah, J as he then was) vide order dated 27.09.2007 in Criminal Misc. Application No. 10436 of 2007 had been pleased to hold that it will be open for the concerned Investigating Officer and / or appropriate authority to submit appropriate application for further investigation under Section 173(8) of the Code of Criminal Procedure in Page 5 of 13 Downloaded on : Sat Dec 24 12:05:14 IST 2022 R/SCR.A/1510/2005 JUDGMENT DATED: 03/03/2022 Criminal Case No. 9523 of 2007 arising out of FIR being C.R. No. I - 202 of 2005, and whereas when such application would be made the same would be considered on its own merits. This Court has also inter alia recorded and observed as regards holding of departmental inquiry against the concerned Investigating Officer who had preferred incomplete charge- sheet as well as 'B' Summary in the respective FIR and complaint as referred to hereinabove.
7.1 It appears that pursuant to the order passed by this Court, the Investigating Officer being the concerned Detective Police Inspector, CID Crime had preferred an application on 01.11.2007 inter alia requesting the Court to pass appropriate orders for further investigation with regard to the complaint where 'B' summary report had been filed by the Investigating Officer. It further appears that the petitioner no. 8 of Special Criminal Application No. 1510 of 2005, had also preferred an application for seeking the very selfsame relief. It appears that the learned Magistrate vide order dated 02.01.2008, had filed the report filed by the Investigating Officer for further investigation and whereas the 'B' Summary report had been granted. It appears that against the order passed by the learned Magistrate, the petitioner no.8 of Special Criminal Application No. 1510 of 2005 and others had preferred Revision Application being Criminal Revision Application No. 231 of 2008 before the learned 5 th Additional District and Sessions Jduge, Surat and whereas vide judgement and order dated 30.12.2009, the learned Sessions Court had been pleased to reject the said revision application. The order passed by the learned Magistrate confirmed by the Revisional Court is under challenge before this Court in Special Criminal Application no. 144 of 2010. Additionally it also appears that the petitioners had prayed for directing the CID Crime, Gujarat State to carry out further investigation under Section 173(8) of the Code of Criminal Procedure with regard to the M Case No. 6 of 2005 i.e. complaint filed by the original land owners.
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8. Heard learned Advocate Mr. Nitin Amin on behalf of the petitioners in both the petitions, learned Advocate Mr. Rushabh Shah on behalf of respondent no.3 in Special Criminal Application No. 1510 of 2005 and learned APP Ms. M.D. Mehta for respondent no.1- State in both the matters.
9. Learned Advocate Mr. Amin on behalf of the petitioners in both the petitions would inter alia submit that the reasons which weighed with the learned Magistrate in rejecting the application preferred by the Investigating Officer, are completely erroneous. Learned Advocate would submit that the learned Magistrate in his detailed order while he holds that there is lacuna with regard to the investigation where the previous Investigating Officer police had filed 'B' Summary report, yet on absolutely irrelevant consideration, learned Magistrate had not considered the application preferred by the Investigating Officer under Section 173(8) for further investigation with regard to the allegations in M case No. 6 of 2005 where the previous Investigating Officer had filed 'B' Summary report. Learned Advocate would further submit that when the Investigating Officer had submitted an application for further investigation, the learned Magistrate had also committed error in accepting the 'B' Summary report more particularly according to learned Advocate Mr. Amin the facts with regard to the irregularity in the first investigation, and on record more particularly the said aspect having been observed by this Court vide order dated 27.09.2007 in Criminal Misc. Application 10436 of 2007. Learned Advocate Mr. Amin would further elaborate by submitting that the concerned Investigating Officer, upon coming to know about the order passed by the Director General of Police of transferring the investigation from Umra Police Station to the CID Crime, had filed incomplete charge-sheet with regard to the FIR preferred by respondent no.3 of Special Criminal Application No. 1510 of 2005 and insofar as the complaint which has resulted into M Case No. 6 of Page 7 of 13 Downloaded on : Sat Dec 24 12:05:14 IST 2022 R/SCR.A/1510/2005 JUDGMENT DATED: 03/03/2022 2005 by one of the original land owners, the Investigating Officer had preferred "B' Summary report. Learned Advocate would submit that the fact of the State Government contemplating departmental proceeding against the concerned Investigating Officer had been noted by this Court in the order referred to hereinabove and even this Court had also directed the State Government to take appropriate action forthwith. Learned Advocate would submit that the fact of the investigation not being properly carried out and the investigation being carried out with a view to cover up the offence rather than unearth the same as is required, is very much available on record the learned Magistrate ought not to have rejected the application for further investigation and ought not to have accepted the 'B' summary report.
10. Learned Advocate Mr. Amin would submit that the learned Sessions Court also committed the very selfsame error of law as committed by the learned Magistrate and whereas and according to learned Advocate both the orders may be set aside by this Court and issue appropriate directions to respondent no. 2 in Special Criminal Application No. 144 of 2010 i.e. the Investigating Officer, CID Crime and Railways to conduct further investigation with regard to the M Case No. 6 of 2005 where 'B' Summary report referred to hereinabove had been filed and till such time,the learned Magistrate may be directed not to proceed further with regard to the Criminal Case where charge-sheet has been filed against the petitioners and others.
11. Learned APP Ms. Mehta would submit that the fact that the then Investigating Officer having dishonestly conducted the investigation, with regard to both FIRs, being placed on record and having been considered by this Court in earlier round of petition, the learned Trial Court as well as the learned Revisional Court ought to have accepted the request of the Investigating Officer to investigate further and whereas till such time, the Page 8 of 13 Downloaded on : Sat Dec 24 12:05:14 IST 2022 R/SCR.A/1510/2005 JUDGMENT DATED: 03/03/2022 learned Magistrate ought not to have granted B summary report.
12. This petition is vehemently contested by learned Advocate Mr.Rushabh Shah on behalf of respondent no.3 in Special Criminal Application No. 1510 of 2005.
13. It is required to be mentioned that the respondent no.3 is a party only in the first petition where the Investigating Officer, had filed a charge-sheet which is referred to hereinabove. Since the second petition being Special Criminal Application No. 144 of 2020 is with regard to a direction to the Investigating Officer for Investigating into the complaint for further investigation into the complaint filed by the original land owner, the present complainant - respondent no.3 herein has not been joined therein and whereas respondent no.3 is not required to be heard insofar as second petition is concerned. Insofar as Special Criminal Application No. 1510 of 2005, learned Advocate would submit that since prima facie allegations have been made in the FIR by respondent no.2 and whereas the then Investigating Officer had thought it appropriate to file a charge-sheet with regard to the said FIR, learned Advocate would submit that this Court may not interfere with the said FIR and whereas learned Advocate would submit that in case the petitioners prefer an application after investigation then it would be open for the petitioners to file appropriate application for discharge. Furthermore learned Advocate would submit that in any case the petitioner i.e. original accused would get liberty to disprove the allegation at the stage of trial and whereas the learned Advocate would submit that this Court may not interfere with the impugned FIR at this stage.
14. Heard learned Advocates for the respective parties, who have not submitted anything further.
15. The prayer sought for by the petitioners, i.e. the accused with regard Page 9 of 13 Downloaded on : Sat Dec 24 12:05:14 IST 2022 R/SCR.A/1510/2005 JUDGMENT DATED: 03/03/2022 to FIR being C.R. No. I- 202 of 2005 registered with Umra Police Station, Surat and with regard to some of the petitioners before the learned Trial Court where application for further investigation had been preferred by the Investigating Officer, CID, Gujarat State being that this Court may grant the request of the Investigating Officer for further investigation with regard to M Case No. 6 of 2005 preferred by one of the land owners where 'B' Summary report has been preferred by the Investigating Officer, this Court may permit further investigation and whereas till further investigation is carried out, proceeding with regard to Criminal Case No. 9523 of 2007 pending in the Court of learned Additional Chief Judicial Magistrate , Surat arising from FIR being C.R. No. I- 202 of 2005 be stayed.
15.1 From the documents on record and the submissions made by the learned Advocates it clearly appears that at the relevant point of time two parallel FIRs were being looked into by the Investigating Officer i.e. Police Inspector, Umra Police Station. That one of the affected parties, since he was of the opinion that the investigation was not being carried out properly appears to have approached the Director General of Police, Gujarat State and whereas, finding merit in the representation, the Director General of Police had transferred the investigation from Umra Police Station to the CID Crime. It also clearly appears that in the interregnum the concerned Investigating Officer of Umra Police Station, had after order was passed by the Director General of Police had filed charge-sheet in FIR being C.R. No. I- 202 of 2005 impugned in Special Criminal Application No. 1510 of 2005 and whereas insofar as M Case No. 6 of 2005 the said Investigating Officer had preferred 'B' summary report. It also appears that this Court in order dated 27.09.2007 in Criminal Misc. Application No. 10436 of 2007 had also noted the submissions on behalf of the State Government that the action of the then Investigating Officer was done surreptitiously and whereas even the investigation had not been complete. This Court had also noted that a departmental action was contemplated against the said Investigating Officer.
Page 10 of 13 Downloaded on : Sat Dec 24 12:05:14 IST 2022R/SCR.A/1510/2005 JUDGMENT DATED: 03/03/2022 Learned APP Ms. Mehta has also submitted that a departmental
proceedings had been initiated against the said Investigating Officer. It clearly appears that the investigation by the said concerned Investigating Officer was inadequate, as noted by this Court the charge-sheet as well as the 'B' Summary had been filed surreptitiously, just to infructuate order passed by the Director General of Police transferring the investigation to a different Investigating Agency. It is in context of these facts that the Investigating Officer being the Detective Inspector from the newly appointed agency had filed application for further investigation. In the application dated 01.11.2007 the concerned Investigating Officer had mentioned that the Director General of Police vide order dated 18.04.2007 having transferred investigation to the CID Crime, Gujarat State. In the considered opinion of this Court, when it was clearly pointed out that the investigation carried out was inadequate and the Investigating Officer, is of the opinion that further investigation is required to be done and in view of the facts as narrated hereinabove the learned Trial Court had gravely erred in passing order dated 02.01.2008, filing application for further investigation.
16. Perusal of the said order as pointed out by learned Advocate Mr. Amin on behalf of the petitioners also reveals that even the learned Trial Court, was of the opinion that investigation with regard to case where charge-sheet had been filed, was inadequate. It also appears that learned Trial Court had also observed that the Investigating Officer is empowered under the law to conduct investigation independently. That having held as above, without giving no reasons whatsoever much less any adequate reasons, the learned Magistrate had filed the report for further investigation. In the considered opinion of this Court when such sensitive and glaring facts were placed on record of the learned Magistrate, it was incumbent upon the learned Magistrate to have ensured that further investigation be carried out more particularly as noted hereinabove when it was apparent and when it has come on record that the earlier Investigating Officer, who had Page 11 of 13 Downloaded on : Sat Dec 24 12:05:14 IST 2022 R/SCR.A/1510/2005 JUDGMENT DATED: 03/03/2022 filed the charge-sheet and the 'B' summary as the case may be, had done it hastily, surreptitiously and dishonestly to infructuate the order of Director General of Police for transfer of investigation to a different agency. In the opinion of this Court the learned revisional Court, ought to have corrected the error committed by the learned Magistrate did not directing further investigation when it was clear that the investigation was totally inadequate.
17. Having regard to the same under such circumstances in the considered opinion of this Court both the orders passed by the learned Magistrate as well as the learned Sessions Court are required to be interfered with and appropriate orders for directing further investigation and for staying of proceedings are also required to be passed.
18. Having regard to the discussion and reasons hereinabove, the order impugned in Special Criminal Application No. 144 of 2010 dated 02.01.2008 passed by the learned Chief Judicial Magistrate, Surat in application for further investigation and 'B' summary in M Case No. 6 of 2005 and C.R. No. I- 202 of 2005, confirmed vide order dated 30.12.2009 by the learned 5th Additional District Court and Sessions Judge, Surat in Criminal Revision Application No. 231 of 2008 are hereby quashed and set aside.
18.1 Respondent no.2 of Special Criminal Application No. 144 of 2010 i.e Detective Police Inspector, Gujarat State is permitted to conduct further investigation with regard to the M Case No. 6 of 2005, as requested by the concerned Investigating Officer vide request dated 01.11.2007. Report with regard to the investigation shall be placed before the concerned learned Magistrate within a period of three months from the date of receipt of this order.
It is further directed that till such report is filed by the Investigating Officer of M Case No. 6 of 2005, further proceedings with regard to Page 12 of 13 Downloaded on : Sat Dec 24 12:05:14 IST 2022 R/SCR.A/1510/2005 JUDGMENT DATED: 03/03/2022 Criminal Case No. 9523 of 2007 arising from C.R. No. I- 202 of 2005 shall remain in abeyance.
19. With these observations and directions the present petitions stand disposed of as allowed. Rule is made absolute to the aforesaid extent.
In view of order passed in Special Criminal Application No. 1510 of 2005, Criminal Misc. Application No. 1 of 2021 stands disposed of as having infructuous.
(NIKHIL S. KARIEL,J) NIRU Page 13 of 13 Downloaded on : Sat Dec 24 12:05:14 IST 2022