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2021 DIGILAW 949 (GUJ)

SUKHMANIBEN KUSHALBHAI VASAVA v. STATE OF GUJARAT

2021-10-18

B.N.KARIA

body2021
JUDGMENT : 1. By way of present petition, petitioner has prayed for following reliefs: “(a) To allow this Petition. (b) To issue a writ of mandamus or a writ, order or direction in the nature of writ of mandamus ordering transferring the investigation of First Information Report No. CRI, 168 of 2015 registered with Rajpipla Police Station, on 27.10.2015 for having committed the offence of murder to the CBI, as this Hon’bie Court may deem fit and appropriate in the facts and circumstances of the case; (c) To issue a writ of mandamus or a writ, direction or order in the nature of writ of mandamus commanding the newly appointed investigation agency to conduct investigation of First Information Report No. CRI, 168 of 2015 registered with Rajpipla Police Station on 27.10.2015 strictly in accordance with law; (d) To pass any other order or orders in favour of the petitioner as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.” 2. The brief facts leading to filing of the present petition may be summarized as under: 2.1 The petitioner herein is the daughter of Shri Khushalbhai Gopalbhai Vasava and Ratanben Khushalbhai Vasava (both deceased/victims in the FIR CR.I, 168/15). Petitioner herein, is the owner of land bearing survey number 285 of village Nava Vaghpura. 2.2 That on the said piece of land, Petitioner herein was desirous to start a nursery school and she had also obtained permission for nonagricultural purpose. That the construction activities had commenced in order to build the nursery school and the same was being supervised by the parents of the Petitioner herein. That the parents of the Petitioner were residing on the same land to overlook the construction activities. 2.3 That on 25.10.2015 the Petitioner herein along with her husband visited Mount Abu in order to drop off her two daughters and on her way back from Mount Abu, the very next day, she had a telephonic conversation with her parents. That on 27.10.2015, when the Petitioner herein was at her residence, she had received a phone call from the building contractor that the father of the Petitioner herein (Shri Khushalbhai) had received an injury on his head and there was severe bleeding as well. On hearing the said details, petitioner along with her School Clerk immediately rushed to the land where her parents were residing. On hearing the said details, petitioner along with her School Clerk immediately rushed to the land where her parents were residing. On reaching there, to her utter shock, she found that her father and mother had received a similar type of injury and unfortunately, both of them had passed away. 2.4 That the Petitioner herein filed a complaint on 27.10.2015 which came to be registered as CR.I. No. 168/2015. Pursuant to the said FIR, the Police had drawn the Inquest Panchnama. That the Post-Mortem report also supports the version as narrated by the Petitioner. That pursuant to the lodging of the FIR there was no action being taken by the Police authorities and hence the Petitioner herein filed a complaint before the Chief Judicial Magistrate First Class at Rajpipla. That the said complaint was filed as C.R.INo. 168/15, but there was no progress with the said investigation. In spite of the Petitioner naming the suspect in the said FIR, apart from the Police had not seized the mudamal Article. 2.5 That since there was absolutely no progress with the investigation, the petitioner moved this Court and preferred Special Criminal Application No. 4995/2016 wherein vide order dated 02.08.2016, this Court was pleased to transfer the investigation to the CID from the investigating authority (Rajpipla Police). That this Court in the said order clearly observed that without any ambiguity CID would complete its investigation within a period of 8 weeks from the receipt of the said order. 2.6 As per the contents of the petitioner, there was complete inaction on the part of CID and they did once again record the statement of the Petitioner herein. No other step was taken by the CID and the investigation reached a complete dead end for certain reasons best known to CID. It is contended that there was no progress of the investigation, despite the fact that the Petitioner who is the complainant in the FIR had clearly mentioned the name of the accused. Had it been the case that Petitioner had stated in the FIR that her parents were brutally murdered by someone anonymous, then one can understand that it might be difficult to investigate such matter. 2.7 That being aggrieved and helpless, Petitioner herein moved the Apex Court by filing a Special Leave Petition (Criminal) Diary no(s). Had it been the case that Petitioner had stated in the FIR that her parents were brutally murdered by someone anonymous, then one can understand that it might be difficult to investigate such matter. 2.7 That being aggrieved and helpless, Petitioner herein moved the Apex Court by filing a Special Leave Petition (Criminal) Diary no(s). 40621/2017 on the grounds that since there had been no headway in the investigation undertaken by CID in spite of an order of the Gujarat High Court mandating that such investigation was to be completed within a period of 8 weeks, the investigation prayed to be transfer from CID to the CBI. The Hon’ble Apex Court through its order dated 09.02.2018 was pleased to dismiss the said SLP. However, the Petitioner was granted the liberty to approach the High Court to avail the appropriate remedy as accorded by law. 2.8 As contended by petitioner First Information Report No. C.R. No.I168 of 2015 registered with Rajpipla Police Station, for the offence of having committed a murder on 27.10.2015. That a period of around 830 days has lapsed from the date on which the said FIR came to be registered and though since 27.10.2015, there has been absolutely no headway with regards to the investigation as undertaken by the officials of either the Rajpipla Police or the CID. That the officers have shown complete inaction on their part with regards to investigating the matter, for some reasons best known to them. Hence this petition to transfer the investigation from CID to CBI. 3. Heard learned advocate for the petitioner and learned Additional Public Prosecutor Mr. H.K. Patel for the respondent-State. 4. It is submitted by learned advocate for the petitioner that it is highly possible that such inaction is as a consequence of the fact that the person named in the FIR as an accused is an extremely influential person who is very powerful and politically well-connected. That such inaction and lackadaisical attitude as displayed by the investigating authority becomes evident from the fact that till date, the investigating agencies (both the local police as well as the CID) have only recorded the statement of the Petitioner herein (complainant in the FIR). That such inaction and lackadaisical attitude as displayed by the investigating authority becomes evident from the fact that till date, the investigating agencies (both the local police as well as the CID) have only recorded the statement of the Petitioner herein (complainant in the FIR). It is further argued that it is quite saddening to see such an approach being adopted by the investigating agencies especially the CID, in spite of being a Court order to complete investigations within 8 weeks. That such callousness displayed by the investigating authority mustn’t be tolerated at any cost and permitting such officials to continue with the investigation of the accusations made against the accused persons in First Information Report No. C.R.1168 of 2015 would defeat the ends of Justice and more importantly severely undermine the trust of the masses in the Criminal Justice Delivery System of India. It is further argued by learned advocate that the CID completely failed in their duty to conduct fair and impartial investigation, despite there being an order of this Court, mandating CID to do so, clearly seeks indulgence of this Court on the sole reason that there has been a time lapse of almost 830 days and there being no signs even of commencement of an actual investigation. The petitioner suspects that the laxity on the part of the CID is deliberate and aimed at helping the accused persons as such accused persons are very powerful and well-connected. The petitioner bona fidely believes that inaction or absence of alacrity on the part of the police appears to be driven by extraneous factors and other considerations not known to law. The petitioner apprehends that the reluctance of the local police & the CID in conducting investigation and taking appropriate steps in accordance with law appears to be because of exercise of undue influence by the accused upon them. In any event, the conduct of the CID investigating the complaint is highly suspect and betrays the element of fairness and impartiality expected of the investigating agency. Learned advocate for the petitioner further submits that considering the manner in which the CID has progressed thus far under the complaint it is highly suspect that a fair and just investigation can be expected to be carried out by the CID. Learned advocate for the petitioner further submits that considering the manner in which the CID has progressed thus far under the complaint it is highly suspect that a fair and just investigation can be expected to be carried out by the CID. That assuming for a moment that extraneous considerations have not weighed with the CID in carrying out the investigation, the manner in which the CID has conducted itself casts a serious doubt not just upon their honesty and integrity but also competency in carrying out an impartial and efficient investigation. That the Courts of Law have time and again transferred investigation from the local police to a neutral efficient agency, be it either of the State Government or the Central Government, not just to ensure that proper investigation is carried out but also to protect the faith and trust of the victims and the general pubic in the system of law. It is further argued by learned advocate that investigation has been transferred where such transfer is considered necessary “to discover the truth and to meet the ends of justice of because of the complexity of the Issues arising for examination or where the case involves national or International ramifications of where people holding high positions of power and influence or political clout are involved.” It is further argued that considering the above factors it would be desirable to entrust the Investigation to the CBI in the peculiar facts and circumstances of the cause so that the petitioner may feel assured that an independent agency is looking into the matter and that such agency shall fairly and impartially conduct investigation strictly in accordance with law. In support of his arguments, learned advocate appearing for the petitioner has relied upon the judgments reported in 2018 SCC OnLine Guj 300, (2010) 2 SCC 200 , 2017 SCC OnLine Guj 271, 2020 SCC OnLine SC 1031 and judgment in the case of Mohd. Anis v. Union of India of the Hon’ble Supreme Court of India as well as Judgment and order passed by this Court in Special Criminal Application No.963 of 2007. Ultimately it is requested by learned advocate for the petitioner to allow this petition by transferring the investigation of C.R. No.I168 of 2015 registered with Rajpipla Police Station, on 27.10.2015 as prayed in the petition. 5. Learned APP Mr. Ultimately it is requested by learned advocate for the petitioner to allow this petition by transferring the investigation of C.R. No.I168 of 2015 registered with Rajpipla Police Station, on 27.10.2015 as prayed in the petition. 5. Learned APP Mr. H.K. Patel appearing for the respondent-State has submitted that all possible steps are being taken to trace the culprit of the parents of the writ applicant. It is further submitted that it is not that the investigation is not proceeding in the right direction, but, despite best of the efforts, Investigating Agency has not able to make any headway It is further submitted that after transferring the investigation from local police to CID as ordered by this Court dated 02.08.2016 passed in Special Criminal Application No.4955 of 2016, all sincere efforts were made by the Investigating Agency of CID branch. It is further submitted that statements as suspected by the writ applicants were also recorded, S.D.S./L.V.A. test were also carried out with the assessment of Forensic Scientific Laboratory, Gandhinagar, statements of other related persons were also recorded by the Investigating Agency and report is also submitted before this Court by Superintendent of Police, CID Crime, Vadodara Zone received on 18.08.2021. It is further submitted that from the investigation carried out by the CID as per the order passed by this Court, conduct of the husband of the writ applicant was found to be suspicious and doubtful as he is not corporating the Investigating Agency and writ applicant is also making false allegations against the Investigating Agency. There is no involvement of any political influential persons in the crime as alleged by the writ applicant. It is further submitted that transferring the investigation from CID to CBI as prayed by the petitioner, such an order should not be passed as a matter of routine order merely because a party has levelled some allegations against the Investigating Agency. It is further submitted that otherwise the CBI would be flooded with large number of cases with limited resources, may find it difficult to properly investigate even serious cases and in the process loose its credibility and purpose with unsatisfactory investigations. It is further submitted that otherwise the CBI would be flooded with large number of cases with limited resources, may find it difficult to properly investigate even serious cases and in the process loose its credibility and purpose with unsatisfactory investigations. It is further submitted that investigation by the CBI can be passed only when this Court, after considering the material on record, comes to the conclusion that such material does disclose a prima facie case calling for an investigation by the CBI or any other similar agency. He has referred the progress report of investigation and submitted by the prosecution dated 18.08.2021 and ultimately requested to dismiss the petition. 6. Having heard learned advocate for the petitioner and learned APP for the respondent-State and after going through the action taken report 18.08.2021 submitted by the prosecution before this Court and after considering the nature of offence sought to be investigated by the CBI, it appears from the report that in first round, petitioner has approached this Court by way of Special Criminal Application (Direction) No.4955 of 2016 and prayed to transfer the investigation of the offence to the CID Crime, Bharuch, which was investigated by the Police Inspector, Rajpipla. At the relevant point of time this Court (Coram : Hon’ble Ms. Justice Sonia Gokani) was pleased to allow the petition preferred by the writ applicant directing the Police Inspector, Rajpipla to transfer the immediate effect the papers of investigation and case diary to the Superintendent of Police, Narmada, who shall hand over the papers to the Senior Officer of the CID Crime and investigation shall be carried out by the Officer not below the rank of Deputy Superintendent of Police. It was further directed to complete the investigation within 8 weeks from the date of receipt of the copy of the order dated 02.08.2016. It appears that thereafter against the final judgment and order passed by this Court dated 02.08.2016, petitioner approached the Hon’ble Apex Court by filing SLP (Criminal) Diary No.40621 of 2017, the said petition was disposed of with a liberty to the petitioner to approach the High Court and avail remedy available under the law on 09.08.2018. It appears that thereafter against the final judgment and order passed by this Court dated 02.08.2016, petitioner approached the Hon’ble Apex Court by filing SLP (Criminal) Diary No.40621 of 2017, the said petition was disposed of with a liberty to the petitioner to approach the High Court and avail remedy available under the law on 09.08.2018. It appears from the record that Deputy Superintendent of Police, CID Crime, Vadodara Zone, Vadodara took the charge of the investigation from 19.12.2016 as per the order dated 02.08.2016 passed by this Court in Special Criminal Application No.4955 of 2016. Investigating Agency, recorded the statement of relatives of the writ applicant under Section 161 of the Cr.P.C, 1973 to verify and past dispute with family members or family rivalry with the family members. No fruitful outcome could be revealed. Thereafter it also appears from the action taken report, the statements of neighbours of the writ applicant were also recorded under Section 161 of the Code to verify any past disputes with deceased couple for past rivalry. Names of neighbours are (1) Bachbhai Barsanghbhai Vasava (2) Maheshbhai Karsanbhai Tadvi (3) Bharatbhai Mohanbhai Vasava (4) Ramanbhai Lakshmanbhai Tadvi (5) Ramanbhai Jivanbhai Tadvi (6) Ashokbhai Bhagvanbhai Tadvi (7) Lallubhai Lakadiyabhai Vasava (8) Chandubhai Kahiram Tadvi (9) Brijesh Rajeshbhai Patel (10) Motibhai Gordhanbhai Javiya and (11) Dharmendra Ambalal Tadvi. However, no fruitful outcome could be revealed. The statement of the suspects shown in the FIR namely Jaswantbhai, was recorded by the investigating agency. Mr. Jaswantbhai was working with Motibhai Javia, who was a contractor working at the site (nursing school) of the writ applicant. As per the statement of Mr. Jaswantbhai, on 26.10.2015 he was in Dist-Surat, and therefore, to verify the veracity of his version on that day of incident, Mr.Jaswantbhai (alleged suspect) and Motibhai were subjected to SDS and LVA test. The outcome of the test was nil as per the prosecution report. Further statement of the writ applicant was recorded on 07.02.2017 wherein writ applicant for the first time disclosed the names of 16 persons, who were alleged by the writ applicant to be suspects other than named in the FIR. The outcome of the test was nil as per the prosecution report. Further statement of the writ applicant was recorded on 07.02.2017 wherein writ applicant for the first time disclosed the names of 16 persons, who were alleged by the writ applicant to be suspects other than named in the FIR. Pursuant to the further statement of the writ applicant, Investigating Agency thoroughly interrogated and recorded the statements of all 16 persons and obtained call data records of all 16 suspects persons narrated by the writ applicant and after analysing the same, no fruitful outcome on suspicion raised by the writ applicant could be arrived at. It also appears that Investigating Agency of CID adopted scientific method of investigation to reveal the truth on 11.06.2018 as well as 12.06.2018, total 8 suspects were taken to Department of Forensic Psychology, FSL Gandhinagar to carry out S.D.S test. It also appears that (1) Brijesh Rajeshbhai Patel (2) Ramanbhai Jivanbhai Tadvi (3) Dharmendra Ambalal Tadvi (4) Budhabhai Barsangbhai Vasava (5) Lallubhai Lakadiyabhai Vasava (6) Bharatbhai Mohanbhai Vasava (7) Gopalbhai Shivabhai Tadvi and (8) Jaydeepsinh Balwantsinh Gohil were subjected to S.D.S. test but only Brijesh Patel and Ramanbhai Patel gave consent to carry out such test and rest of them denied their consent. The Investigating Agency also carried out to conduct the L.V.A. test of above referred four suspects (1) Budhabhai Barsangbhai Vasava (2) Lallubhai Lakadiyabhai Vasava (3) Bharatbhai Mohanbhai Vasava and (4) Gopalbhai Shivabhai Tadvi, who denied their consent for conducting S.D.S. test with a request letter dated 30.11.2018, which was carried out on 23.01.2019. The report of L.V.A. test suggests that (2) Lallubhai Lakadiyabhai Vasava (3) Bharatbhai Mohanbhai Vasava (4) Gopalbhai Shivabhai Tadvi were narrating the truth but it revealed through L.V.A. test that Budhabhai Barsangbhai Vasava (husband of writ applicant who was working in Police Department) was not narrating the truth. The Investigating Agency to reveal the truth, submitted an application before the Court of Learned Chief Judicial Magistrate at Rajpipla to grant the permission to carry out Narco Analysis Test of Budhabhai Barsangbhai Vasava. The learned Magistrate rejected the application vide order dated 26.06.2019 on account of denial of consent by Budhabhai Barsangbhai Vasava. It also appears that total 10 suspects were subjected to S.D.S. and L.V.A. test, the report of 9 suspects was NIL except the report of Budhabhai Barsangbhai Vasava (husband of the writ applicant). The learned Magistrate rejected the application vide order dated 26.06.2019 on account of denial of consent by Budhabhai Barsangbhai Vasava. It also appears that total 10 suspects were subjected to S.D.S. and L.V.A. test, the report of 9 suspects was NIL except the report of Budhabhai Barsangbhai Vasava (husband of the writ applicant). As per the statement of the prosecution, Investigating Agency has taken all possible and available steps to detect the crime in question (1) recorded statements of more than 50 persons (2) Obtained call data records of 20 suspects (3) Analysed the call data records (4) published advertisement in electronic and print media (5) conducted S.D.S. tests of suspects (6) conducted L.V.A. tests of suspects (7) applied for conducting Narco test of Budhabhai Barsangbhai Vasava (husband of writ applicant). Therefore, allegations made by the writ applicant that there has been absolutely no headway with regard to investigation undertaken by CID and officials has shown complete inaction cannot be accepted as it is contrary to the records of the investigation as discussed above. Suspected persons namely (Jasabhai) named in the FIR is throughly interrogated, call data records of his mobile phone and tower location is throughly investigated and upon analysing the same coupled with report of S.D.S. test, Jasabhai does not appear to be suspect of committing impugned crime. As husband of the writ applicant is found suspected and he is not corporating the Investigating Agency, it appears that writ applicant has made allegations against the Investigating Agency declined to continue the investigation with the CID crime stating that no investigation would be carried out by the CBI. Learned APP has also produced copy of the case diary, which is also considered by the court. 7. In a case cited in 2020 SCC OnLine SC 1031 is related to Anticipatory Bail under Section 438 of the Code of Criminal procedure, 1973 filed by five persons, which was allowed by the High Court. 8. Judgment relied upon by the learned advocate for the petitioner in Special Criminal Application No.963 of 2007 was in connection with to hand over the investigation to CBI for investigating into the matter or to any other agency deemed fit by this Court. Considering the peculiar facts of the case, this Court was pleased to direct the DCB (Crime) Ahmedabad to register the complaint and transfer the case to CBI. 9. Considering the peculiar facts of the case, this Court was pleased to direct the DCB (Crime) Ahmedabad to register the complaint and transfer the case to CBI. 9. In a case cited in (2010) 2 Supreme Court Cases 200, considering the facts and circumstances of the case, Hon'ble Apex Court was pleased to direct the police authorities of the State to hand over the record of the case to the CBI authorities and CBI authorities for the investigation and complete the same within a particular period. 10. In a case cited in 2018 SCC OnLine Guj Page 300, investigation was transferred from Kagdapith Police Station, Ahmedabad to CBI considering the facts of the case. 11. In a case cited in 2017 SCC OnLine Guj Page 271, officer of the Anti Corruption Bureau and team were directed to carry out further investigation in the case referring the factual aspect. 12. Each case would differ from facts to facts, which would certainly require to be considered by the Court. The facts of the cited cases would differ from the facts of the present case, and therefore, the judgment relied upon by the learned advocate for the petitioner would not be helpful to the petitioner. 13. In the case of Haresbhai Kiritbhai Trivedi vs. State of Gujarat, reported in 2018 SCC Online Guj 300, the High Court has observed as under: “The Constitutional Bench of the Apex Court in the case of State of West Bengal and others vs. Committee for Protection of Democratic Rights, West Bengal reported in [2010] 6 SCC 571, has made the following observations pointing out the situations where the prayer for investigation by the CBI should be allowed: In so far as the question of issuing a direction to the CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such powers should be exercised, but time and again it has been reiterated that such an order is not to be passed as a matter of routine order merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigations or where the incident may have national or international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the CBI would be flooded with large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations. 10. It is a now settled law that if a citizen, who is a de facto complainant in a criminal case alleging commission of a cognizable offence affecting violation of his legal or fundamental rights against influential persons, prays before a High Court for a direction of investigation of the said alleged offence by the C.B.I., such prayer should not be granted on mere asking. 12. In the above decision, it was also pointed out that the same Court in Secretary, Minor Irrigation & Rural Engineering Services, U.P. vs. Sahngoo Ram Arya & Anr. [( 2002 5 SCC 521 ], had said that an order directing an enquiry by the CBI should be passed only when the High Court, after considering the material on record, comes to the conclusion that such material does disclose a prima facie case calling for an investigation by the CBI or any other similar agency.” 14. ORDER IN Cr.M.A. No.1/2019 In view of the order passed in Special Criminal Application No.2210 of 2018, present application does not survive and accordingly, disposed of. ORDER IN Cr.M.A. No.1/2020 In view of the order passed in Special Criminal Application No.2210 of 2018, present application does not survive and accordingly, disposed of.