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2002 DIGILAW 217 (GUJ)

MUKESHBHAI BHAVANJI THAKKAR v. STATE

2002-03-18

C.K.BUCH

body2002
C. K. BUCH, J. ( 1 ) ). THIS revision application is moved by the original complainant under sec. 397 read with sec. 401 of Crpc in reference to the CR NO. I-153/2002 registered at Bhuj City Police Station on 8. 7. 2001 at about 1. 00am. ( 2 ) ). ON completion of investigation of the crime, the police has charge-sheeted respondent no. 2-Dhaval Thakkar for the offence punishable under sec. 302 of IPC and he has been committed to the Court of Sessions by the concerned Magistrate. The respondent no. 2-accused is facing trial at present for the said offence in the Sessions Case No. 30/2001. Ld. APP, during the course of submissions has stated that the trial is pending with the Court of Addl. Sessions Judge dealing with the under-trial prisoners which is one of the Court established for the purpose under the programme of "fast Track Court". Of course, this Court is aware of the fact that looking to the nature of the grievance expressed by the present petitioner, the pendency of the sessions case before the Fast Track Court would not be relevant. ( 3 ) ). (I) it is contended by the petitioner that he being original complainant had prayed before the trial court vide application ex. 8 under sec. 173 (8) of Crpc for passing an order for further investigation in the facts and circumstances of the case. (ii) ld. Counsel for the petitioner Mr. Raval has taken this Court through the number of set of facts available on record and has tried to point out that the ld. Sessions Judge ought to have granted the application and prayer to investigate the crime further, so element of offence of criminal conspiracy if found, can be unearth or anybody if found to have abated the accused Dhaval than such person or persons can also be tried simultaneously with the main accused Dhaval. (iii) the inter-se relations between the accused and the original complainant is mentioned in para-5 and 6 of this revision application and it is submitted that prosecution witness Chandani, daughter of Kishorebhai and P. W. Kasturiben is a niece of petitioners eldest brother Mahesh Bhavanji Thakkar. The petitioners eldest brother Maheshbhai is paternal uncle and petitioners sister-in-law Gitaben wife of Maheshbhai Thakkar is paternal aunt. ( 4 ) ). The petitioners eldest brother Maheshbhai is paternal uncle and petitioners sister-in-law Gitaben wife of Maheshbhai Thakkar is paternal aunt. ( 4 ) ). (I) according to the prosecutionn as per FIR, real sister of the accused Dhaval was to be engaged with deceased Jagdish as she was in love with Jagdish. But the accused Dhaval Thakkar, any how, was against this love affairs and the decision of the family members for the tie between his sister Chandani and deceased Jagdish. According to the prosecution, therefore, he was unhappy with Chandani, his own mother and Jagdish. So, under the pretext to take deceased Jagdish somewhere on the fateful day and killed Jagdish by inflicting number of blows with the knife. (ii) according to the prosecution and the PM Note, produced on record, twenty injuries were found on the body of the person deceased. Everybody including the complainant suspecting on the day and time the complaint filed that somebody including the present accused Dhaval has committed this crime. (iii) facts as to the conduct conduct of the accused at the bus-station where he had pulled out his mother, sister and Jagdish out from the State Transport Bus they boarded proceeding towards village Mundra, the behavior of the accused to take his sister Chandani and mother at their residence and bolting the doors from outside, his act of fetching scooter from his friend, his conduct of giving clothes to one another friend and his conduct to abscond from the town Bhuj on the suggestions from one of his friend and his arrest on the information of one of the witness from Ahmedabad on record, are indicative of sufficient circumstances under which it may be legitimately inferred that present respondent no. 2 only and only may not have committed the crime in question. Somebody else may have abated this offence or the murder of Jagdish may be the result of a conspiracy. Such conspiracy if hatched than who are the conspirator was the issue before the police. As per complainant, the police has conveniently not investigated the crime in the correct direction. The apprehension expressed by Mr. Raval is that this lacuna may have been committed on account of inaction or negligence or it may be a case of connivance with the accused side. As per complainant, the police has conveniently not investigated the crime in the correct direction. The apprehension expressed by Mr. Raval is that this lacuna may have been committed on account of inaction or negligence or it may be a case of connivance with the accused side. Absence of injury on the body of the present accused-Dhaval and absence of non-recovery of blood stains on clothes from the accused Dhaval are also relevant aspects which are conveniently ignored and, therefore, the complainant had prayed for further investigation in to the matter. The application prayed before the ld. Addl. Sessions Judge is a self explanatory and the order rejecting the application is mainly based on surmises. According to Mr. Raval, the learned trial judge has accepted that the application has not been given only with a view to delay the proceedings then the ld. Addl. Sessions Judge ought to have attempted to see that the truth comes before the Court. It was possible for the court to hand over the investigation to other independent agency ignoring the charge framed or to any Superior Officer stationed at Bhuj. When police had registered the crime for the offence punishable under sec. 302 read with section 114 of IPC than at least there should be some material on record under which it can be said that the complaint under sec. 114 was erroneously lodged. ( 5 ) ). MR. Raval has placed reliance on number of decisions and has submitted that the Sessions Court is empowered to direct the police authorities to investigate the crime further if something specific is brought to the notice of the Court and this can be done at any stage of the trial. The application exh. 8 was tendered on the first day of hearing, the day on which complainant was summoned to lead oral evidence. The complainant was not aware that only respondent no. 2 has been prosecuted. He has also taken me through the allegations made in the application by around 52 persons of town Mundra to the D. S. P. , district Bhuj-Kutchch. Leaders ( Mahajan ) of Lohana community of town Mundra had expressed their apprehension to the D. S. P. of similar nature, when the accused Dhaval was under police remand. He has also taken me through the allegations made in the application by around 52 persons of town Mundra to the D. S. P. , district Bhuj-Kutchch. Leaders ( Mahajan ) of Lohana community of town Mundra had expressed their apprehension to the D. S. P. of similar nature, when the accused Dhaval was under police remand. The grievance of the complainant is that though attention of the D. S. P. of the district was drawn with all apprehension, even than only respondent no. 2 has been charge-sheeted. The application, is therefore, filed under sec. 173 (8) ought not to have been rejected in the manner in which it has been thrown out. According to Mr. Raval the criminal court also should see that substantive justice is being done and the version of the victim or complainant side is also simultaneously considered in all legal perspective. The Ld. Addl. Sessions Judge has committed a substantial jurisdiction error by not exercising the powers vested with him under the relevant provisions and the same has resulted into serious prejudice. Two important witnesses namely Chandani real sister of the accused and mother Kasturiben have turned hostile by now as the trial was on till the date, some arrangements were worked out before this court, during the course of hearing of this revision application. More than two persons who could have been charge-sheeted as accused either as abettor or conspirator, according to the complainant, are in the list of witnesses. These witnesses are yet to be examined. So, appropriate order requires to be passed at the earliest so that police can if so desirous can interrogate these persons as suspects. After investigation they may continue as witnesses and on their interrogation some independent unknown third person may be joined as accused. Ld. Judge has not considered all these aspects, so this revision should be allowed and the order passed below application exh. 8 should be quashed and this court should direct the trial court to send the papers to the concerned police station back or to other independent agency with appropriate directions. In the alternate, it is submitted that this court should direct the concerned police station in investigate the crime further with the help of senior police officers which may be named by D. S. P. , Kutchch- Bhuj. ( 6 ) ). In the alternate, it is submitted that this court should direct the concerned police station in investigate the crime further with the help of senior police officers which may be named by D. S. P. , Kutchch- Bhuj. ( 6 ) ). IN this revision application, the petitioner-complainant has prayed that further investigation be ordered and the same be handed over to the officer superior in rank and be made by independent agency as may be deemed just, fit and reasonable. However, during the course of arguments, Mr. Raval had further submitted that if further investigation is ordered and any superior officer of any other police station is asked to investigate the crime in the light of the application ex. 8, the petitioner would be satisfied. ( 7 ) ). LD. APP Mr. SS Patel has submitted that after careful reading of the order passed by the ld. Addl. Sessions Judge, he is satisfied with the reasonings. It is a speaking reasoned order and no jurisdictional error has been committed by the Ld. Addl. Sessions Judge. The Ld. trial judge has considered all the points raised by the complainant in the application exh. 8. The finding for rejecting the application recorded are not only logical but also legal. According to Mr. Patel the apprehension expressed by the complainant before the court vide application exh. 8 was earlier expressed not only to the police but higher officers i. e. D. S. P. of the District. So, it would not be correct to say that police has not made any effortst on the line suggested by the complainant. Mr. Saurin A Shah and Mr. SS Patel Ld. APP both have submitted that it would be wrong to presume that number of injuries are more and therefore, the accused must be more in number. After pointing out all the injuries found on the person deceased Jagdish, it is submitted that all these injuries can be inflicted by single weapon i. e. muddamal knife or any other such sharp cutting instrument. The Ld. Trial Judge has already recorded the deposition of the Doctor, but it would not be proper or legal to pass any comments qua this deposition because afterall this is a piece of evidence and can be said to be an opinion. But this court can read the Post Mortem Note itself and the reasons assigned by the ld. The Ld. Trial Judge has already recorded the deposition of the Doctor, but it would not be proper or legal to pass any comments qua this deposition because afterall this is a piece of evidence and can be said to be an opinion. But this court can read the Post Mortem Note itself and the reasons assigned by the ld. trial judge qua the allegations made by the complainant in the application. The witness whose scooter was taken by the respondent-Dhaval is one of the witness before whom, as per the case of the prosecution, the accused Dhaval has made extra judicial confession. He is important witness qua the conduct of the accused also. The other witness is also a friend of the accused. He has also helped the investigating agency. The statement of this witness Hitesh Shankarlal Parmar if seen, there is no indication of conspiracy. Prima-facie at the initial stage of the investigation that it was suspected that there may be more persons in the crime committed and, therefore, on two different occasions police remands were obtained but nothing fruitful was found. According to Mr. Raval these remands were asked and obtained as a matter of formality and nothing concrete was done. This Court should call for the station diary and scrutinise the details of the various stage of investigation during the days of remand. I am afraid that it would not be proper to open the sealed cover of a station diary with a view to appreciate the application of complainant in the midst of the trial otherwise as per settled legal proposition in the exceptional circumstances, if required, only the trial court is supposed to open the sealed Station Diary with a view to consider any of the aspect reflected in it qua genuineness of or infirmity in the investigation. The requisition asking for remand on both the occasions is also available on record. As submitted by Mr. Patel it is possible that looking to the social tie between the accused and the deceased Jagdish he might have waited for some time and would be ridded the scooter as per wish and will of the accused-Dhaval. Merely because one suspects some other possibility, it would not be legal or proper to conclude that investigating agency must not have cared about all these aspects. ( 8 ) ). Merely because one suspects some other possibility, it would not be legal or proper to conclude that investigating agency must not have cared about all these aspects. ( 8 ) ). THE cognizance of the offence has been taken by the Sessions Court. Around 5 to 6 witnesses are also examined and the ld. Judge has after considering all relevant aspects has started recording the evidence of prosecution side. Though ld. PP appearing for the State has supported the say of the complainant, however, after the impugned order Ld. APP has not moved Legal Department with a specific opinion that the order passed by the ld. Addl. Sessions Judge requires to be challenged by way of revision. It seems that after going through the order passed by the Ld. Addl. Sessions Judge, ld. PP who had supported the version of the original complainant must have felt satisfied. So, it would not be proper to say that Mr. SS Patel surprisingly takes contrary stand to his counter part. ( 9 ) ). THE certified copy of the application ex. 8 moved by the original complainant wherein the complainant has requested the court that the offence of criminal conspiracy is prima-facie reflected in the police papers, and therefore, further investigation in that direction requires to be made. In para-3 of the application, absence of thorough interrogation of the owner of the scooter is though relevant has not been made is the second grievance and in para-4 of the application, the complainant has tried to point out that the persons who have helped the accused in running away to Ahmedabad and in destroying the relevant evidence are also guilty and all of them could have been joined by the police as conspirator in the incident. After referring relevant decisions placed before the ld. Addl. Sessions Judge has negatived the contention of the complainant on the set of facts available from the papers of investigation and earlier order passed by the court including the order of remand passed by the ld. Magistrate. As discussed earlier, the ld. Addl. Sessions Judge has held that there is no reason to accept the case put forward by the police that the accused charge-sheeted only is the person accused and it is not impossible for a person to inflict number of blows found. Magistrate. As discussed earlier, the ld. Addl. Sessions Judge has held that there is no reason to accept the case put forward by the police that the accused charge-sheeted only is the person accused and it is not impossible for a person to inflict number of blows found. It is not necessary to cite any decision though brought to the notice of this court. In number of cases, the courts have convicted one accused for the offence of murder in such cases holding such accused guilty irrespective of the number of injuries found on the person killed. The person through whom the accused has arranged for procurement of muddamal knife has not been joined as an accused by the police but according to Mr. Patel, Ld. APP that he is a witness. If the police is satisfied at the stage of investigation that person is a witness and not an accused as he was not aware about the use of the weapon than he may not be linked with the crime. When absence of element of abatement of sharing an intention is not available than the Investigating Officer can cite the person giving knife to the accused as witness and nothing wrong or adverse to the police officers be presumed. It was open for the complainant to bring the circumstances or other relevant evidence before the police by which link, if any, between accused-Dhaval and the witness-person who has given knife could have been established. Same is the case with other witnesses. The statement of witness Dinesh Ravilal is also considered by the Ld. Addl. Sessions Judge. Same is the case with P. W. Pravin Dayaram Pujara, a person whose scooter was procured by the accused for carrying the deceased Jagdish at the scene of incident. Possibility of some other view would not give rise to a cause for filing such an application and such suspicion or say other alternative possibility would normally not authorise a judge or magistrate to order fresh or further investigation. Filing of a chalan u/s. 173 (1) is a matter of subjective satisfaction of Investigating Agency, objectively arrived at. Unless something is found substantial by way of fresh material, fresh circumstance or willful and deliberate, omission on the part of the investigating agency or the element of dishonesty in investigation is brought to the notice the powers under sec. Filing of a chalan u/s. 173 (1) is a matter of subjective satisfaction of Investigating Agency, objectively arrived at. Unless something is found substantial by way of fresh material, fresh circumstance or willful and deliberate, omission on the part of the investigating agency or the element of dishonesty in investigation is brought to the notice the powers under sec. 173 (8) should not be exercised by the Court. ( 10 ) ). SOME decisions are brought to the notice of this Court by ld. counsel Mr. Raval appearing for the petitioner and the otherside. Firstly, Mr. Raval has placed reliance on the decision in the case of Sarlaben Virsing Bamaniya and Anr. V. State of Gujarat and Anr. , reported in 1989 (1) GLR p. 55 and has submitted that the ld. Addl. Sessions Judge could have exercised the powers under sec. 173 (8 ). It is not necessary that the same should be exercised by the Magistrate only. The facts of the case cited by Mr. Raval to some extent is similar to the case on hand, however, in the cited case the sessions court had rejected the application for further investigation on the ground that it is empowered to join any person as accused in view of the provisions of sec. 319 of Crpc. In the present case, the ld. Addl. Sessions Judge has not said that the complainant can apply at the subsequent stage to join somebody as accused, but the ld. Addl. Sessions Judge has held that he is not satisfied with the reasons or grounds put forward for ordering further investigation, accepting such powers. So, cited decision would not help the applicant. In the case of Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwandadha Maharaj vs. State of Andhra Pradesh and Ors. , reported in AIR 1999 SC 2332 , where the Apex Court has observed that""in such a situation the power of the Court to direct the police to conduct further investigation cannot have any inhibition. There is nothing in Section 173 (8) to suggest that the Court is obliged to hear the accused before any such obligation on the Court would only result in encumbering the Court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard. As law does not require it, we would not burden the Magistrate with such an obligation. As law does not require it, we would not burden the Magistrate with such an obligation. " ( 11 ) ). THE grievance of Mr. Raval is that in view of the above ratio, the ld. Addl. Sessions Judge ought not to have considered the say of the accused and the opportunity offered to the accused before passing the order under challenge has resulted into serious prejudice. But it seems that the ld. Addl. Sessions Judge while dealing with the application filed by the complainant has evaluated the case put forward by the complainant vide application ex. 8 and the submissions made by the ld. counsel for the ori. complainant and Ld. Public Prosecutor. The oral submissions made by Mr. Saurin Shah if ignored, even then this court does not feel that the finding recorded by the ld. Addl. Sessions Judge either patently illegal or perverse and contrary to the basic principle of criminal jurisprudence. In the case before the Apex Court, re-investigation was requested before the Magistrate where the Apex Court has held that the powers to order and conduct further investigation after laying final report, is recognised under section 173 (8) of the Crpc. Even after the Court took cognizance of any offence on the strength of the police report first submitted, it is open to the police to conduct further investigation. After referring the decision of Ram Lal Narang vs. State (Delhi Admn.), AIR 1979 SC 1791 , it is observed that only rider with the police in such an eventuality is to inform the court and to seek formal permission to make further investigation. ( 12 ) ). IN the present case, the complainant has prayed for further investigation. The Ld. APP has supported the say of the complainant, however, on merits the ld. Addl. Sessions Judge has recorded the finding that this is not a case where further investigation is warranted or otherwise required in view of the papers of investigation. According to prosecution, nobody was present through out, when the crime was committed by the accused-Dhaval and possibility of somebody helping him while doing so even if is emerges, than the endeavors made by the police during the course of investigation should not be viewed only with suspicion otherwise grant of such an application made cause serious prejudice to the case of prosecution. So, in such a contingency, the court should go very slow in accepting the suspicion expressed by the original complainant as gospel truth. On the contrary, when D. S. P. of the district was made aware of some possible mischief or such apprehension than on similar set of facts further investigation on the day of initiation of effective trial i. e. on the day of recording the evidence of first witness should not have been ordered and therefore, also the finding of the ld. Addl. Sessions Judge cannot be said to be erroneous or perverse. Mr. SS Patel ld. APP for the State has supported the case of prosecution placed before the trial court and the State has not found any patent illegality in the order passed by the ld. Addl. Sessions Judge. The ratio of the Apex Court in the case of Randhir Singh Rana vs. The State Being Delhi Administration, reported in AIR 1997 SC p. 639, also indicates about the embargo in the powers of the J. M. F. C. while ordering re-investigation under sec. 173 (8) of Crpc. Distinguishing the decision in! the case of Abhinandan Jha v. Dinesh Mishra, reported in 1968, SC 117 and by referring the decision of Ram Lal Narang (supra), the Apex Court has observed that:"question posed by us was if for further investigation, the police should ordinarily take formal permission of the Court, can the court on its own not ask for further investigation, if the same be thought necessary to arrive at a just decision of the case? That the Courts are meant to advance the cause of justice cannot be doubted. It is really this need of a court of law which had led a Full Bench of the Punjab and Haryana High Court in State v. Mehar Singh, 1974 Criminal Law Journal 970, to take the view that even after cognizance has been taken. Court can order further investigation in exercise of inherent power, which was read in S. 561-A of the old Code, whose paralled provision in the new Code is S. 482. As to this decision, it has to be pointed out that in terms both these sections have saved the inherent power of the High Court only; it is doubtful whether the said power can be said to inhere in subordinate criminal Courts also. " ( 13 ) ). As to this decision, it has to be pointed out that in terms both these sections have saved the inherent power of the High Court only; it is doubtful whether the said power can be said to inhere in subordinate criminal Courts also. " ( 13 ) ). IN the case of Randhir Singh Rana (supra), the point at discussion was whether the Magistrate has power to order further investigation of his own. I am afraid, even Investigating Officer would have approached the court for the very purpose with the similar application, and without any new material of fresh facts, the ld. Addl. Sessions Judge could have granted such application. Looking to the present set of facts available on record, it is a case wherein somebody must have brought new or fresh material before the ld. Addl. Sessions Judge with a view to attract the powers vested vide under sec. 173 (8) of Crpc. This is not a case of denial of jurisdiction or powers vested but a denial to exercise such powers. ( 14 ) ). FOR the reasons stated hereinabove, this revision application fails and the same is dismissed in limine. ( 15 ) ). REJECTION of this revision application would not be a bar so far as the observations of the ld. Addl. Sessions Judge made in the order under challenged is concerned. ( 16 ) ). MR. Harin Raval learned counsel appearing for the applicant has submitted that this order may not be implemented for 15 days from today and the same may be stayed with appropriate directions to the trial court as the applicant-ori. complainant intends to approach the Apex Court. Considering the totality and facts that the trial has substantially progressed and 5 to 6 witnesses have been examined including the Doctor who has performed autopsy. Hence, request of Mr. Raval is not accepted. .