Gujarat High Court
Asif @ Anish Ayub Patel vs State Of Gujarat & on 15 December, 2016
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.RA/928/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION NO. 928 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED
===============================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
================================================================
ASIF @ ANISH AYUB PATEL....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
================================================================
Appearance:
MS. KRUTI M SHAH, ADVOCATE for the Applicant(s) No. 1
MR UMESH A TRIVEDI, ADVOCATE for the Respondent(s) No. 2
MR RAKESH PATEL APP for the Respondent(s) No. 1
================================================================
CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 15/12/2016
ORAL JUDGMENT
Page 1 of 11
HC-NIC Page 1 of 11 Created On Fri Dec 16 00:09:35 IST 2016 R/CR.RA/928/2016 JUDGMENT
1. Rule. Learned APP Mr. Rakesh Patel waives service of Rule on behalf of the respondent No.1 - State and learned advocate Mr. Umesh Trivedi waives service of Rule on behalf of the respondent No.2.
2. Present Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure, is preferred by the applicant - original accused against the order passed by the learned Sessions Judge, Bharuch, in Criminal Revision application No.61 of 2016 dated 11.11.2016, whereby the learned Sessions Judge allowed the said Revision Application by quashing and setting aside the order dated 8.6.2016 passed by the learned Fourth Additional Judicial Magistrate (F.C.), Bharuch, in Criminal Case No.2994 of 2012 application below Exhibit 29, preferred by the respondent - State, under Section 173(8) of the Code of Criminal Procedure, seeking further investigation for role played on the part of one Faruq Vora.
3. The facts giving rise to this Revision Application may be summarized as under:
The respondent No.2 - original complainant filed complaint being C.R. No. I 67 of 2012 at Bharuch City "A" Division Police Station against the present applicant for the offence under Sections 465, 467, 468, 471, 406, 420 of the Indian Penal Code. After the investigation, the Investigating Officer filed charge sheet on 10.8.2012 for the said offences including one offence under Section 403 of the Indian Penal Code, which was reported by the P.I. On 28.5.2012. During the period between 11.3.2011 to 15.5.2012, the applicant - accused executed an agreement to sell in favour of the Page 2 of 11 HC-NIC Page 2 of 11 Created On Fri Dec 16 00:09:35 IST 2016 R/CR.RA/928/2016 JUDGMENT complainant for land bearing Survey No.1059 situated at Mangrol village, admeasuring 1 Acre - 32 Gunthas for the sale consideration of Rs.49 Lakhs and thereafter, the applicant did not execute the sale deed in favour of the complainant. It is also the case of the prosecution that the accused had already sold out the land of Survey Nos.2061 and 2062 of village :
Aachod and flouted the project in the name of "Prayas Park", and thereby obtained the amount of Rs.51,65,000/- from the complainant of 37 plots and executed false undertakings and documents and also sold out Captiva Car No.GJ-16-BV-7744 of the complainant to one Samirbhai Bhikhubhai Gaghedhariya for Rs.80 Lakhs and collected Rs.7 Lakhs from the said person and thus, he obtained Rs.1 Crore and 65 Lakhs from the complainant and took away said Captiva Car. It is also the case of the prosecution that the applicant was arrested on 19.5.2012 and after completion of his remand, he was sent to the Judicial Custody and subsequently, he was released on bail.
It is also the case of the prosecution that after submission of the charge-sheet, the charge was framed by the trial Court at Exhibit 8 and the plea of the accused was recorded at Exhibit 9 on 4.1.2014, wherein the accused did not plead guilty. Thereafter, Criminal Case No.2994 of 2012 was registered and the said Case was kept for recording of the evidence and the summons was issued to the complainant on 31.1.2015. It is also the case of the prosecution that on that date, the complainant and his advocate appeared and sought time. Thereafter, the matter was pending for recording the evidence of the complainant, but the complainant had not remained present. It is also the case of the prosecution that the accused did not remain present, the warrant was issued against the accused and the matter was kept again for recording of the Page 3 of 11 HC-NIC Page 3 of 11 Created On Fri Dec 16 00:09:35 IST 2016 R/CR.RA/928/2016 JUDGMENT evidence of the complainant. It is also the case of the prosecution that due to non-cooperation of the complainant, his evidence was not recorded by the trial Court. It is also the case of the prosecution that Special Public Prosecutor was appointed in the said case and he presented one application below Exhibit 29 in the said said case, under Section 173(8) of the Code, stating that the accused had obtained Rs.1 Crore and 65 Lakhs from the complainant and and the stamp paper for executing the agreement to sell is executed, was purchased by one Faruk Vora on 3.3.2011 and though this person is Notary by profession, the said agreement to sell was not notarized and even other three stamp papers upon which the receipts were to execute for plot No.1 to 27 of Prays Park were also purchased by said Faruk Vora and notarized the same. It is also stated that in the papers of investigation, the statement of said person Mr. Faruk Vora is not recorded and therefore, it is necessary to know the specific role of said Mr. Faruk Vora. Even the Police has not investigated that at which place, the accused had invested the money and or use the same. Therefore, Special Public Prosecutor made prayer for further investigation. After hearing the parties, the learned trial Judge dismissed the said application below Exhibit 29 by order dated 8.9.2016. Against the said order dated 8.6.2016 passed by the trial Court, the respondent State preferred Criminal Revision Application No.61 of 2016 before the learned Sessions Judge, Bharuch and same was allowed vide order 11.11.2016 passed in Criminal Revision Application No.61 of 2016, quashing and setting aside the order passed by the trial Court. Hence, present Criminal Revision application against the said order by the applicant.
4. Learned advocate Ms. Kruti Shah appearing for the Page 4 of 11 HC-NIC Page 4 of 11 Created On Fri Dec 16 00:09:35 IST 2016 R/CR.RA/928/2016 JUDGMENT applicant stated that the complaint filed by the complainant with mala fide intention and with an ulterior motive and from the bare perusal of the same, it transpires that no offence has been committed by the applicant. She also stated that the investigation was completed and charge sheet was also filed and also plea was recorded, but the complainant has not extended any cooperation before the trial Court and after a period of four years from the charge-sheet, the Special Public Prosecutor submitted application Exhibit 29 by raising flimsy grounds for further investigation. She also submitted that this not a case of defective investigation and the Investigating Officer has never made any application seeking further investigation. Therefore, it can be said that such kind of application is filed by the prosecution with a view to harass the present applicant and to bring the pressure with a view to settle the matter with the complainant. She also submitted that said Special Public Prosecutor gave such application on his own as there was no request on behalf of the Investigating Officer to file such application. She further submitted that while passing the impugned order, learned Sessions Judge has completely overlooked the provisions of Section 173 (8) of the Code of Criminal Procedure. She also submitted that even the application Exhibit 29, which was given by the Special Public Prosecutor was not contained any ground or any special ground for any further investigation.
5. In support of the submissions, learned advocate Ms. Kruti Shah relied upon upon decision in the case of Reeta Nag Vs. State of West Bengal and others reported in (2009) 3 Supreme Court Cases (Cri) 1051 and submitted that in that case, investigating authority had not applied for further investigation Page 5 of 11 HC-NIC Page 5 of 11 Created On Fri Dec 16 00:09:35 IST 2016 R/CR.RA/928/2016 JUDGMENT and the learned Magistrate wrongly directed for reinvestigation on application made by the complainant and thereby the learned Magistrate exceeded his jurisdiction in entertaining the application. She therefore, submitted that the learned Magistrate cannot suo motu direct further investigation or reinvestigation of the case. She therefore, submitted that in the case on hand, there was no application made by the investigating agency. She also submitted that the same ratio laid down by the Hon'ble Supreme Court in that case, is absolutely applied to the present case. She further cited the decision decided by this Court in Special Criminal Application No.2268 of 2014 (Sumanbhai Kantibhai Patel and Anr. Vs. Amrutbhai Shambhubhai Patel and Anr.) on 10.4.2015, wherein this Court has considered the ratio laid down in the aforesaid case i.e. Reeta Nag (Supra). She also submitted that it appears that prima faice, the dispute is of civil nature and the Civil Suit is also filed before the Civil Court, which is pending for adjudication.
6. In view of the aforesaid submissions, learned advocate Ms. Kruti Shah prayed to allow present Criminal Revision Application by quashing and setting aside the impugned order passed by the Sessions Court and the application submitted by the Special Public Prosecutor for further investigation is required to be dismissed.
7. Learned advocate Mr. Umesh Trivedi appearing for the respondent No.2 - original complainant, strongly opposed the application and submitted that learned Sessions Judge has rightly passed the impugned order and therefore, no interference is required to be called for by this Court. He also submitted that in the charge-sheet papers, there is no name of Page 6 of 11 HC-NIC Page 6 of 11 Created On Fri Dec 16 00:09:35 IST 2016 R/CR.RA/928/2016 JUDGMENT said Mr. Faruq Vora, who is Notary. But the Investigating Officer thought it feet that said Mr. Faruq Vora is not necessary witness and therefore, his name is not stated as witness nor his statement was recorded. He further submitted that the stamp paper for executing the receipts pertaining plot Nos.1 to 37 was also purchased by said Mr. Faruq Vora and same was notarized by him. Therefore, as per the submissions of learned advocate Mr. Umesh Trivedi, the role on the part of Mr. Faruq Vora is material and he is required to be examined as material witness. But due to faulty investigation, he was not made as witness and therefore, he was not examined. The Investigating Agency has not even made any attempt to show the said person as witness nor his statement is recorded. He, therefore, submitted that the investigating officer is negligent and for the purpose, the application Exhibit 29 application was preferred by the Special Public Prosecutor with a view to bring on record the role on the part of Mr. Faruq Vora, so the purpose of interest would be served. He lastly submitted that present application is required to be quashed and set aside in the interest of justice.
8. Heard learned APP Mr. Rakesh Patel appearing for the State and he submitted that the investigation was not carried out by the investigating agency in proper manner and even then charge-sheet is filed in the case.
9. Heard the learned advocates appearing for the parties and perused the contentions raised in the application along with the order passed by the Courts below. It is the case of the prosecution that in the Criminal Case No.2994 of 2012 before the trial Court, one application below Exhibit 29 under Section Page 7 of 11 HC-NIC Page 7 of 11 Created On Fri Dec 16 00:09:35 IST 2016 R/CR.RA/928/2016 JUDGMENT 173(8) of the Code of Criminal Procedure, was submitted by Special Public Prosecutor. It is also the case of the prosecution that the accused had obtained Rs.1 Crore and 65 Lakhs from the complainant. It is also the case of the prosecution that the stamp papers on which the agreement to sell executed, was purchased by Mr. Faruq Vora, who is Notary by profession and said agreement to sell is not notarized. Even the stamp papers for receipts pertaining to plot Nos. 1 to 37 of "Prayas Park" was purchased by said Mr. Faruq Vora. It is also the case of the prosecution that the said Mr. Faruq Vora is not witness and his statement was not recorded by the Investigating Officer, thought there is a specific role played by said person. The Investigating Officer has not taken due care while investigating the case and thereby committed irregularities and illegalities. Even it is not transpired that the investigating agency has not taken care to investigate that the said huge amount taken by the accused, was invested anywhere or not and without making detailed investigation, charge-sheet is filed in the case. Therefore, it can be said that the said investigation is faulty investigation. The investigating officer has not made any application for reinvestigation. It is the case of misappropriation of the huge amount and the stamp papers purchased by Mr. Faruq Vora as well as the relevant documents were prepared and the said documents ought to have notarized by the said person. Here it appears that the said person has played vital role in carrying out the transactions took place between the parties. From the order passed by the learned Magistrate, it appears that while passing such impugned order, he has taken cognizance and thereafter, he rejected the application, but there is defective investigation. Even as per settled law, the Police had the right to reopen the Page 8 of 11 HC-NIC Page 8 of 11 Created On Fri Dec 16 00:09:35 IST 2016 R/CR.RA/928/2016 JUDGMENT reinvestigation even after the submission of the charge-sheet under Section 173 of the Code of Criminal Procedure. In this regard, this Court has perused the case of Ram Lal Narang Vs. State (Delhi Admn.) reported in AIR 1979 Supreme Court 1791 (1), more particularly para 18, which reads as under:
"In H.N. Rishbud Vs. The State of Delhi (1955) 1 SCR 1150),this Court contemplated the possibility of further investigation even after a Court had taken cognizance of the case. While noticing that a police report resulting from an investigation was provided in Section 190 Criminal Procedure Code as the material on which cognizance was taken, it was pointed out that it could not be maintained that a valid and legal police report was the foundation of the jurisdiction of the Court to take cognizance. It was held that where cognizance of the case had, in fact, been taken and the case had proceeded to termination, the invalidity of the precedent investigation did not vitiate the result unless miscarriage of justice had been caused thereby. It was said that a defect or illegality in investigation, however serious, had no direct bearing on the competence of the procedure relating to cognizance or trial. However, it was observed:
"It does not follow that the invalidity of the investigation is to be completely ignored by a Court during trial. When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such re-investigation as the circumstances of an individual case may call for".
This decision is a clear authority for the view that further investigation is not altogether ruled out merely because cognizance of the case has been Page 9 of 11 HC-NIC Page 9 of 11 Created On Fri Dec 16 00:09:35 IST 2016 R/CR.RA/928/2016 JUDGMENT taken by the Court; defective investigation coming to light during the course of a trial may be cured by a further investigation, if circumstances permit it."
10. This Court has also perused the provisions of Section 173(8) of the Code of Criminal Procedure, which reads as under:
"Section 173(8) in The Code Of Criminal Procedure, 1973 (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-
sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub- section (2).
11. The decisions cited by the learned advocate Ms. Kruti Shah are not helpful to the applicant because herein present case, the accused obtained huge amount and the person namely Mr. Faruq Vora is suspicious person because the documents in question are not notarized and he was purchaser of the stamp papers. The investigation is defective because the statement of said person is not recorded anywhere and Page 10 of 11 HC-NIC Page 10 of 11 Created On Fri Dec 16 00:09:35 IST 2016 R/CR.RA/928/2016 JUDGMENT even his name is not disclosed by the investigating agency anywhere. In these circumstances, he is required to be investigated in detail because he is only person, who can show the real picture. Therefore, the learned Sessions Judge has rightly allowed Criminal Revision Application by quashing and setting aside the order passed by the learned Magistrate.
In view of the above, present Criminal Revision Application is dismissed. Rule is discharged.
(Z.K.SAIYED, J.) YNVYAS Page 11 of 11 HC-NIC Page 11 of 11 Created On Fri Dec 16 00:09:35 IST 2016