SHIVANGI AMIT PANCHAL vs. STATE OF GUJARAT

R/SCR.A/3521/2019 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CRIMINAL APPLICATION NO. 3521 of 2019 ========================================================== SHIVANGI AMIT PANCHAL Versus STATE OF GUJARAT ========================================================== Appearance: MR AMIT M PANCHAL with MR ANGESH A PANCHAL(9138) for the Applicant(s) No. 1 PUBLIC PROSECUTOR(2) for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MS JUSTICE SONIA GOKANI Date : 12/04/2019 ORAL ORDER 1. The petitioner is before this Court under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, in connection with the FIR being I-C.R. No. 187/2017, registered with Navrangpura Police Station under Sections 406, 418, 420, 465, 467, 468 and 471 of the Indian Penal Code, 1860. 2. The petitioner has approached this Court, with a prayer to direct CID Crimes, Gujarat, to further investigate into the matter in the aforesaid FIR with the following prayers: “11. … A. The CID (Crime), Gujarat State, through the D.I.G.P. CID (Crime) to further investigate I-C.R. No. 187 of 2017, registered on 07.12.2017 with the Navrangpura Police Station, Navrangpura, Ahmedabad, for offences under Sections 406, 418, 420, 465, 467, 468 and 471 of the Indian Penal Code, 1860, on the aspects, and the facts, material and Page 1 of 8

R/SCR.A/3521/2019 ORDER evidence, as indicated in Paragraphs 4 and 5 of this petition and also considering other relevant aspects ” 3. This Court has heard the learned Advocate, Mr. Panchal, for the petitioner, who has urged that the officer concerned has chosen not to investigate many vital aspects and has failed to bring on record vital witnesses and the documents, which would be very important link for the prosecution to prove the guilt of the accused. He, further, has urged that no bank officer, except the one, has been examined for indicating the procedure adopted. Further, allowing these vital documents to be lost would amount to death nail to the case of the prosecution. 4. Learned APP also has argued, at length, and he also has submitted that, though, substantial investigation has already been carried out, where, there are certain loose ends kept, which can be plugged by the IO. So far as the question of impleading the accused is concerned, the reliance is placed on the decision of the Apex Court in ‘DINUBHAI BOGHABHAI SOLANKI VS. STATE OF GUJARAT AND OTHERS’, (2014) 4 SCC 626, to urge that the opportunity of hearing at the stage of directing further investigation and hence, the impleadment to the accused would not be necessary, so far as the further investigation is concerned. There is no likelihood of any prejudice to be caused to the accused, if, there is any direction for further investigation. Page 2 of 8

R/SCR.A/3521/2019 ORDER 5. Having, thus, heard learned Advocates on both the sides and also considering the material on record, more particularly, the papers of charge- sheet. This Court finds that so far as the details, which have been given in the memo of the petition, more particularly at Paragraph-5 thereof, it can be noticed that the search was carried out under Section 132 of the Income Tax Act, where, various documents, receipts and accounts of the trust were found and seized. The cash amount also had been withdrawn from the bank accounts of the trust by the Accountant, Mr. Viay Solanki, who was the Office Boy of the accused and who is alleged to have handed over the same to the accused. 6. The affidavit has been filed by the Dy. Commissioner of Income Tax in Special Civil Application No. 21233/2017, stating the role played by the accused that he had suppressed material facts, which had led to income escaping to the extent of Rs.47.40/- lakh. So far as the accused, who is said to be a practicing Chartered Accountant and known to the father of the original complainant for the past many years, has adopted a modus of acquiring the trust from the very beginning, the modus of his misuse of currency notes after demonetization, with his photographs in the local newspapers with one photograph of Mr. Mahesh Shah also require the specific scrutiny and investigation. These are some of the examples, which can be noticed from the details, which have been furnished. Page 3 of 8

R/SCR.A/3521/2019 ORDER 7. Some of the factual details provided in the memo of petition very clearly reveal that with the present state of evidence collected, prosecution is likely to fail in proving various aspects which are left out during the course of investigation. 8. This Court is, therefore, of the opinion that the matter would require further investigation. The criteria is well settled, as directed in the judgment the Apex Court in VINAY TYAGI VS. IRSHAD ALI ALIAS DEEPAK AND OTHERS’, (2013) 5 SCC 762, as to when there would be a requirement for further investigation, wherein it has been observed as under: “22. 'Further investigation' is where the Investigating Officer obtains further oral or documentary evidence after the final report has been filed before the Court in terms of Section 173(8). This power is vested with the Executive. It is the continuation of a previous investigation and, therefore, is understood and described as a 'further investigation'. Scope of such investigation is restricted to the discovery

further

oral

and documentary evidence. Its purpose is to bring the true facts before the Court even if they are discovered at a subsequent stage to the primary investigation. It is commonly described as

'supplementary

report'. 'Supplementary report' would be the correct expression as the subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered police officer. Another significant feature of Page 4 of 8

R/SCR.A/3521/2019 ORDER further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation

conducted

the investigating agency. This is a kind of continuation

the

previous investigation. The basis is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. In other words, it has to be understood in complete contradistinction

a 'reinvestigation', 'fresh' or 'de novo' investigation. 23. However, in the case of a 'fresh investigation', 'reinvestigation' or 'de novo investigation' there has to be a definite order of the court. The order of the Court unambiguously should state as

whether

the

previous investigation, for reasons to be recorded, is incapable of being acted upon. Neither the Investigating agency nor the Magistrate has any power to order or conduct 'fresh investigation'. This is primarily for the reason that it would be opposed to the scheme of the Code. It is essential that even an order of 'fresh'/ 'de novo' investigation passed by the higher judiciary should always be coupled with a specific direction as to the fate of the investigation already conducted. The cases where such direction can be issued are few and far between. This is based upon a fundamental principle of our criminal jurisprudence which is that it is the right of a suspect or an accused to have a just and fair investigation and trial. This principle flows from the constitutional mandate contained in Articles 21 and 22 of the Constitution of India. Where the investigation ex facie is unfair, tainted, mala fide and Page 5 of 8

R/SCR.A/3521/2019 ORDER smacks of foul play, the courts would set aside such an investigation and direct fresh or de novo investigation and, if necessary, even by another independent investigating agency. As already noticed, this is a power of wide plenitude and, therefore, has to be exercised sparingly. The principle of rarest of rare cases would squarely apply to such cases. Unless the unfairness of the investigation is such that it pricks the judicial conscience of the Court, the Court should be reluctant to interfere in such matters to the extent of quashing an investigation and directing a 'fresh investigation'. 24. In Manu Sharma V. State (NCT of Delhi) [(2010) 6 SCC 1], the Court stated that it is not only the responsibility of the investigating agency, but also that of the courts to ensure that investigation is fair and does not in any way hamper the freedom of an individual except in accordance with law. An equally enforceable canon of the criminal law is that high responsibility

lies

upon

the investigating agency not to conduct an investigation in a tainted or unfair manner. The investigation should not prima facie be indicative of a biased mind and every effort should be made to bring the guilty to law as nobody stands above law de hors his position and influence in the society. The maxim contra veritatem lex nunquam aliquid permittit applies to exercise of powers by the courts while granting approval or declining to accept the report. 25. In the case of Gudalure M.J. Cherian and Ors. v. Union of India and Ors. [(1992) 1 SCC 397], this Court stated the principle that in cases where Page 6 of 8

R/SCR.A/3521/2019 ORDER charge-sheets have been filed after completion of investigation and request is made belatedly to reopen the investigation, such investigation being entrusted to a specialized agency would normally be declined by the court of competent jurisdiction but nevertheless in a given situation to do justice between the parties and to instil confidence in public mind, it may become necessary to pass such orders. 26. Further, in the case of R.S. Sodhi, Advocate v. State of U.P. [1994 SCC Supp. (1) 143, where allegations were made against a police officer, the Court ordered the investigation to be transferred to CBI with an intent to maintain credibility of investigation, public confidence and in the interest of justice. Ordinarily, the courts would not exercise such jurisdiction but the expression 'ordinarily' means normally and it is used where there can be an exception. It means in the large majority of cases but not invariably. 'Ordinarily' excludes extra-ordinary or special circumstances. In other words, if special circumstances exist, the court may exercise its jurisdiction to direct 'fresh investigation' and even transfer cases to courts of higher jurisdiction which may pass such directions.” It is given to understand that no cognizance is taken so far and the accused has already been bailed out by the Court concerned. 9. Resultantly, this petition is ALLOWED and let the further investigation be carried out by the Asst. Commissioner of Police, which shall be Page 7 of 8

R/SCR.A/3521/2019 ORDER supervised by the Dy. Commissioner of Police, of the concerned police station. Such, further investigation shall be completed within a period of EIGHT WEEKS from the date of receipt of a copy of this order, which shall also include the time for filing the supplementary charge-sheet, if any. Direct service is permitted. (SONIA GOKANI, J) UMESH/- Page 8 of 8