JUDGMENT : HEMANT M. PRACHCHHAK, J. 1. Both the Revision Applications arise out of the common judgment and order dated 29.08.2005 and hence, they are being heard analogously and are being decided by this common order. 2. The Criminal Revision Application No. 944 of 2005 is filed by the applicant-Vijaybhai Natwarlal Mehta (original accused No. 7) and the Criminal Revision Application No. 279 of 2006 is filed by the applicant-Central Bureau of Investigation challenging the common judgment and order dated 29.08.2005 passed by the Special Judge, Court No. 4, Ahmedabad in Special Case Nos.56 of 1995, 50 of 1996, 53 of 1996, 56 of 1996, 20 of 1996 and 5 of 1998, whereby the Special Judge, CBI Court had observed as under: “This report filed by Central Bureau of Investigation stating that there is no case against the accused persons, is hereby rejected. All the accused persons are directed to appear before this Court on the next adjourned date for further proceedings of charge. In view of the direction of the Hon’ble Supreme Court passed in Spl. Leave Petitions No. 6481/2001 to 6486/2001, the right of the accused of being heard for charge is required to be protected. Therefore, the accused to be heard for charge.” 3. Brief facts leading to the Criminal Revision Application No. 944 of 2005 filed by the applicant-original accused are that, the original complainant had lodged the FIR being C.R. No. 20/1995 with ACB Police Station, Ahmedabad City against 7 accused persons including the present applicant. The present applicant was not named in the FIR but during the course of investigation, the Investigating Officer had arraigned the present applicant as accused No. 7 in the charge-sheet filed in the Court of Ld. Special Judge, Ahmedabad. 3.1 Brief facts leading to the Criminal Revision Application No. 279 of 2006 filed by the CBI are that, on the basis of complaint of Miss Bijal Revashankar Joshi dated 03.08.1995, 04.08.1995 and 5.8.1995, Shri N.K. Purohit, Deputy Director, Anti Corruption Bureau of Ahmedabad registered a case vide Cr. No. 20/95 against Peerzada Saiyed Moiyuddin, Rauf, Tiger, Nadir Ali, Salim Khan Pathan, Jethabhai Bharwad and V. Kannu Pillai. No. 20/95 against Peerzada Saiyed Moiyuddin, Rauf, Tiger, Nadir Ali, Salim Khan Pathan, Jethabhai Bharwad and V. Kannu Pillai. 3.2 After completion of investigation of Crime No. 20/95 the Investigating Officer filed six charge-sheets in the Court of City Special Judge, Ahmedabad against 12 accused persons On 02.01.1997, learned Special Judge, Court No. 11 framed the charges against the aforesaid 12 accused persons and all the charge sheets were clubbed together. Against the framing of charges, three accused persons filed Special Criminal Application No. 12/97, 17/97 and 18/97 before this Court. 3.3 On the basis of the various representations submitted by accused - V. Kannu Pillai, the Government of Gujarat ordered further investigation by CID (Crime) on 13.02.1997. That against the order dated 13.02.1997, the complainant filed Special Criminal Application No. 204/1997 before this Court seeking direction against the State Government not to entrust further investigation to the State CID (Crime). 3.4 After hearing the matter, this Court vide order dated 28.02.1997 directed the CBI for further Investigation more particularly on the points on which the State Government had directed further investigation by the State CID (Crime). That on the basis of the order of this Court, CBI SCB, Mumbai registered case No. RC.2/S/97-Mum on the basis of same FIR. The CBI submitted complete final investigation report before this Court. 3.5 After accused Shri Nadir Ali, Salim Khan Pathan, Javed Khan Pathan and Yusuf Khan Pathan were released on bail by the Special Judge, Court No. 3, Criminal Misc. Application No. 371/98 filed by the Shri K.V. Joseph, DGP, Gujarat for making him party/respondent in the matter of investigation report filed by CBI, was rejected by this Court. 3.6 That Criminal Misc. Application No. 390/98 filed by Shri Kuldeep Sharma, Commissioner of Prohibition & Excise, Gujarat for making him party/respondent In the matter of investigation report filed by CBI, was heard, but, the said application came to be withdrawn. Shri N.K. Purohit, Dy. Director, ACB had filed Criminal Misc. Application No. 615/98 for making him party/respondent in this case, which came to be withdrawn. 3.7 That Criminal Revision Application No. 12/97, 17/97 and 18/97 came to be allowed and ordered that the order dated 02.01.1997 of the Special Judge was quashed and set aside and on submission of report of CBI, the Trial Judge shall rehear the accused persons under Section 227 of Cr.P.C. before deciding on framing of charge. 3.7 That Criminal Revision Application No. 12/97, 17/97 and 18/97 came to be allowed and ordered that the order dated 02.01.1997 of the Special Judge was quashed and set aside and on submission of report of CBI, the Trial Judge shall rehear the accused persons under Section 227 of Cr.P.C. before deciding on framing of charge. This Court directed CBI to submit the report of investigation along with the documents in accordance with the provisions of Section 173 (8) of the Cr.P.C. 3.8 That CBI filed final report in the Special Court recommending closure of the case and the Special Court issued notice to the complainant, who in turn filed protest petition against the report of CBI. The Special Court considered the charge-sheet filed by ACB as well as the report filed by CBI and passed the judgment and order observing that there was no prima facie case to proceed against all the accused and thereby discharged all the accused vide order dated 05.11.1998. 3.9 Against the said order passed by the Special Court, the respondent and others filed Criminal Revision Applications No. 128/1999, 262 to 266 of 1999 before this Court and this Court vide impugned judgment and order dated 22.06.2001 remanded the matter back to the trial court for fresh consideration. Against the order dated 22.06.2001 passed by this Court, the CBI filed Special Leave Petition No. 6481/2001 and accused filed Special Leave Petition No. 6486/2001 before the Hon’ble Supreme Court of India. 3.10 After hearing the Additional Solicitor General, the Hon'ble Supreme Court has not admitted the SLP filed by CBI, but passed an order that before framing of the charge, the trial court would consider all the relevant materials produced by the investigating agency regardless of sources whether it is collected by the CBI or ACB (Gujarat) and pass appropriate orders. 3.11 It is contended that after the order passed by Hon’ble Supreme Court, all the parties namely CBI, State of Gujarat and all the accused appeared before the learned Special Judge (CBI) Ahmedabad and made their submissions and after hearing the arguments of all the concerned parties, the learned Special Judge has rejected the report of the CBI and directed all the accused to appear before the Court for further proceedings of charge. 3.12 Being aggrieved and dissatisfied with the impugned order and judgment dated 29.08.2005 by the learned Special Judge, Court No. 4, Ahmedabad, the present Revision Application is filed. 4. Heard Mr.Nandish Thakkar, the learned counsel appearing for the applicant-original accused No. 7, Mr.J.K. Shah, the learned APP appearing for the respondent-State of Gujarat and Mr.R.C. Kodekar, the learned counsel appearing for the Central Bureau of Investigation. 5. The learned counsel Mr.Thakkar appearing for the applicant-original accused No. 7 submitted that in the first set of evidence collected by the ACB, the role of the present applicant is not described and therefore, the application was rightly decided by the Special Court in favour of the present applicant, however, in the report filed by the CBI, the Special Court has passed the order as above. 6. Learned counsel Mr.R.C. Kodekar appearing for the Central Bureau of Investigation submitted that the Special Judge has failed to comply with the order of the Hon’ble Supreme Court dated 05.11.2001 by not considering the Closure Report of CBI and documents produced in support of the same and also not followed the order of this Court. He submitted that the Special Judge has not considered the grounds mentioned by the CBI in its Closure Report while passing the order rejecting the Closure Report of the CBI. 7. Feeling aggrieved and dissatisfied with the impugned order, the CBI approached the Hon’ble Apex Court by filing Spl. Leave Petitions (Cri.) No. 6481-6486/2001, whereby the Hon’ble Apex Court had directed the Trial Court to consider both the reports and after examining the reports, the Trial Court shall frame the charge against the accused persons considering all the relevant materials produced by the Investigating Agency. Needless to say that, including the investigation carried out by the CBI. After receiving the said order, the Trial Court has passed the impugned order in the year 2005. 8. It seems that since last more than 18 years, the petition has remained pending and there is no further progress in the proceedings before the Trial Court. Needless to say that, including the investigation carried out by the CBI. After receiving the said order, the Trial Court has passed the impugned order in the year 2005. 8. It seems that since last more than 18 years, the petition has remained pending and there is no further progress in the proceedings before the Trial Court. Once the direction is issued by the Hon’ble Apex Court to consider both the reports in its true and proper spirit and in consonance with the provisions of the Cr.P.C. the Special Court has not considered this aspect in its true and proper spirit while passing the impugned order and the observations made, more particularly in paragraphs 34, 43 and 48 thus: “34. By keeping in view the statement given by the prosecutrix who has lodged the complaint against the accused, as also keeping in view the injury certificate given by the expert doctor who has examined the prosecutrix with regard to her injuries, it becomes clear that her statement has been recorded by the ACB and the independent agency CBI. Thus, if all the papers of investigation done by both the agencies with regard to the said statement and the complaint, are taken into account, what emerges is that the CBI has questioned the very fact that any offence has been committed according to the complainant’s complaint, and the facts produced by the CBI are in contradiction to those mentioned in the chargesheet filed by ACB. 43. In this case, the prosecutrix was produced before the medical officer for the purpose of injuries on her body and secret parts. Dr.Dixit has examined her twice. On 8/8/1995 she was examined, but as her examination remained incomplete in the said date, she was again called on 14/8/1995 for the reason that during her first check-up she had expressed before the medical officer that she does not want to get herself checked up and therefore, to assist the investigation, the medical officer has recalled her and used the anesthesia and then her medical check-up was done. From the medical check-up of both the days, the medical officer has observed in his medical certificate that the patient is conscious, well built, well nourished, auxillary hair black coloured present, breast well developed, no external marks of injury seen all over the body, any type of blood, saliva, semen, etc. From the medical check-up of both the days, the medical officer has observed in his medical certificate that the patient is conscious, well built, well nourished, auxillary hair black coloured present, breast well developed, no external marks of injury seen all over the body, any type of blood, saliva, semen, etc. not seen all over the body, pubic hair present black in colour, not meted, hymen intact but patulas, tips of two fingers admit easily, but patient was uncooperative and not allowed for further examination and complaint like functional pain, and so she is examined under anesthesia etc. From the papers of both the agencies, it appears that the statement of the medical officer Dr.Digant Dixit is recorded. It is observed by the doctor regarding the hymen that it was found petulas. From the statement of prosecutrix and FIR given by her, it is specifically explained that she was raped by accused Salimkban as well as accused. Kannu Pillai. From the entire set of papers, it appears that photographs were taken by the accused persons and she was threatened that she will be exposed in the society. Even she was threatened for her life. In such type of circumstances, when she was clutched and trapped under the conspiracy of the accused persons, and she was ready to offer herself for forcible sexual intercourse by the accused. Now looking to Sec.375 of IPC, it cannot be said that consent was obtained from her or that there was her consent. It is established law that when the consent which was obtained on the basis of threat and temptation, cannot be considered as a consent. In this case from the papers, it appears that consent was obtained from the prosecutrix by way of threatening her. Therefore, the question of wilful consent of prosecutrix does not arise. No doubt, so far as the hymen is concerned, the doctor has used the word “patulas”. It is not necessary to consider that if hymen is intact or patulas then it can be considered that there was no sexual intercourse. I have observed in this order of mine that the Hon'ble Supreme Court has observed that corroboration is not necessary for the evidence of prosecutrix. It is not necessary to consider that if hymen is intact or patulas then it can be considered that there was no sexual intercourse. I have observed in this order of mine that the Hon'ble Supreme Court has observed that corroboration is not necessary for the evidence of prosecutrix. Unless actually raped, no Indian women would come in the open alleging that she has been raped, and thus, no female or her family members would like to put their reputation or dignity at stake. Looking to the papers, it appears that the prosecutrix has never changed her version of the story at any stage in the proceedings so far. I am of the opinion, that when the landmark judgments of Hon’ble Supreme Court are in force, then the CBI cannot say that the prosecutrix’s story is false. I have already discussed that for the statement of prosecutrix regarding rape and sexual intercourse, no corroboration is necessary. In view of the observation made by Hon'ble High Courts and Hon’ble Supreme Court, it is the duty of this court to follow the directions of Hon'ble Apex Court. I respectfully bow down to those directions and in my opinion, the CBI investigation is not properly handled. The said point along with aforesaid discussion, if viewed by taking into account the observations of Hon’ble Supreme Court in the famous Best Bakery Case, then it appears that the Hon’ble Supreme Court has clearly defined the duties and responsibilities of courts. It has observed that “It is said that justice is blind. Such curtain is made to ensure that justice is done without taking into considering the number of litigants coming to the court, and not for ignoring the issue or truth that is placed before the court. The court should find the truth and do impartial justice without becoming the means of exploitation and injustice.” 48. In view of the foregoing discussion, and in light of the Judgments and directions of the Hon'ble High Courts and Hon’ble Supreme Court, I have considered both sets of investigation done by ACB and CBI and ultimately, I conclude that there is a prima facie case for framing the charge against the accused persons and therefore, the present report of the CBI is not fit for being accepted.” 9. Though there was direction issued by the Hon’ble Apex Court to consider both the reports before framing of the charge and on the basis of the materials which is collected by the CBI during the course of investigation, the Special court has committed an error in not considering the reports. The Special Court ought to have considered the said materials and after giving proper opportunity, the Special Court ought to have passed the impugned order. It seems that the Special Court has not considered all these aspects in light of the order passed by the Hon’ble Apex Court. 10. Considering all these aspects, the matter is remitted back to the concerned Special Court and the Special Court shall consider both the investigations carried out by both the agencies before passing any order and after considering both the reports and the investigations carried out by both the agencies. The Special Court is at liberty to pass appropriate order in view of the provisions of the Cr.P.C. and the Special Court shall decide the matter afresh in accordance with law and without being influenced by any of the orders. Such exercise shall be completed within a period of three months from the date of receipt of the copy of this order. However, it is open for all the concerned parties to raise all the legal contentions available in light of the order passed by the Hon’ble Apex Court and the earlier set of investigation carried out by the earlier agencies. 11. With the aforesaid directions and observations, both the Criminal Revision Applications are disposed of. It is clarified that this Court has not examined and not entered into the merits of the matter.