Gujarat High Court
Akhilesh Shrinarayan Tiwari vs State Of Gujarat on 21 July, 2025
NEUTRAL CITATION
R/SCR.A/3701/2013 CAV JUDGMENT DATED: 21/07/2025
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Reserved On : 09/07/2025
Pronounced On : 21/07/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 3701 of 2013
With
CRIMINAL MISC.APPLICATION (FOR STAY) NO. 1 of 2018
In R/SPECIAL CRIMINAL APPLICATION NO. 3701 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
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AKHILESH SHRINARAYAN TIWARI
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR MP SHAH(2418) for the Applicant(s) No. 1
MS. KRUTI M SHAH(2428) for the Applicant(s) No. 1
ADITYA A CHOKSI(7835) for the Respondent(s) No. 4
MR AM PAREKH(562) for the Respondent(s) No. 2,3
MR BHAVESH B CHOKSHI(3109) for the Respondent(s) No. 4
MR CHINTAN DAVE, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
CAV JUDGMENT
1. By way of this petition under Article 227 of the
Constitution of India, read with section 482 of Cr.P.C., the
petitioner has prayed for following reliefs :-
“(A) Issue appropriate writ order or direction for quashing
and setting aside the order dated 30.10.2013 passed by Ld.
Addl. Sessions Judge, Surat in Criminal Revision Application
No.87 of 2013 and order dated 14.03.2013 passed by Addl.
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Chief Judicial Magistrate, Surat below application Exh.82 in
Criminal Case No.10020 of 2006 and Criminal Case
No.21409 of 2006.
(B) Pending admission final hearing and disposal of this
petition, stay the further proceedings of Criminal Case
No.10020 of 2006 and Criminal Case No.21409 of 2006
pending before the Ld. 10th Senior civil Judge and JMFC,
Surat city.
(C) Grant such other and further relief as may be deemed
fit and proper in the interest of justice.”
2. Facts of the case are as under :-
2.1. The petitioner is an original complainant of FIR C. R. No.
1228 of 2005 registered at Pandesara Police Station for the
offence U/Ss. 406, 420, 467, 468, 471, 120B and 114 of IPC. It
was alleged in the said complaint that the accused had hatched
conspiracy to grab the joint ancestral property situated at Plot
No. M/5-6 and 7 of Prince Industrial Estate in S. No. 131 of
Village Bhestan, during the periods between 02.07.03 to
07.05.2005 and they had created bogus forged power of attorney
in the name of accused Matiwar Shrinarayan and the signature
of the witnesses were also forged and on the basis of the said
forged power of attorney, the property in question was sold to
accused Shyamkumari Matiwar Trivari and Kishanchand
Shrinarayan Tiwari.
2.2 The accused were arrested and thereafter they were
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released on bail. During the investigation the police did not
recover the original bogus power of attorney and the police also
did not take the specimen signature and thumb impression of
the witnesses as well as the accused and did not same the sent
to hand writing expert. The complainant had obtained an expert
opinion of private hand writing expert which has concluded that
the signatures made in power of attorney are bogus and forged
but the said report was also not included in the papers of the
charge sheet. Therefore the petitioner made an application Exh.
63 u/s. 173(8) of Cr. P. C. before the Trial Court on 25.03.2011.
The 5th Addl. Senior Civil Judge, Surat has dismissed
application Esh. 63 seeking further investigation by passing
order dared 29.11.2011.
2.3. The petitioner being aggrieved by the said order preferred
Cri. Revision Application No. 27/12 before the Ld. District and
Sessions Judge on 04.02.12. The Addl. Sessions Judge was
pleased to allow the said revision application by quashing and
setting aside the order dated 29.11.2011 and directed the
investigating agency to further investigate into the matter and
find out the power of attorney dated 02.07.2003 executed in
favor of the Matiwar Shrinarayan Tiwari at the earliest.
2.4 The petitioner states that unarmed head constable of
Pandesara Police Station submitted one report dated 28.12.2012
at Exh. 80 before the Trial Court by stating that the offence is of
the year 2005 and the accused were arrested in the year 2006
and because of the lapse of 6 to 7 years, the power of attorney is
not recoverable.
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2.5. The petitioner states that he has raised the objections
against the report, at Exh. 82 before the Trial Court and prayed
to direct further investigation by an officer of higher rank and to
be supervised by the police commissioner. The said objections
were raised on 19.02.13. Vide order dated 14.03.13 the said
objections along with the prayer of further investigation was
rejected by the Trial Court.
2.6. Being aggrieved and dissatisfied by order dated 14.03.13
passed below an application Exh. 82 the petitioner presented
Cri. Revision application No. 87 of 2013 before the Ld. District
and Sessions Judge on 04.04.2013. Vide order dated 30.10.2013
the Ld. Addl. Sessions Judge is pleased to dismiss the revision
application. Hence, present petition.
3. In essence, the petitioner who is original complainant is
challenging the order passed by the learned Sessions Judge in
Revision Application which has confirmed order passed by
learned CJM below Exh.82, whereby, learned Trial Court
declined to issue order for further investigation.
4. Learned advocate Ms.Shah for the petitioner in her
extensive argument after reading complaint as well as referring
to second round of litigation took place before the learned Trial
Court would submit that Investigating Officer in hand and glove
with accused did not carry out investigation in righteous way.
She would further submit that forged power of attorney used to
execute sale deed is centric document, which was required to be
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collected during investigation, however, IO without making
proper and fruitful investigation and without obtaining original
or copy of Power of attorney upon which sale deed was executed
to sell immovable property tendered charge sheet. She would
submit that firstly application was preferred at Exh.63 before the
learned Trial Court in joint trial of Criminal Case No.10020 of
2006 and Criminal Case No.21409 of 2009 raising multiple
reason and grounds. She would submit that learned Trial Court
rejected the application on the ground that charge sheet as well
as two additional charge sheet are filed in the matter. Police had
sufficient time to investigate the offence and alleged registered
sale deed which was executed upon alleged forged power of
attorney are produced during deposition of complainant. Further
reasons assigned by learned Trial Court is that it is not the case
of the complainant that false signature of complainant or
witnesses are made on the registered sale deed. Reasons is also
ascribed that in view of such aspect it is not incumbent to send
document for verification of signature. Learned Trial Court upon
this reasons dismissed the application Exh.63 with liberty to the
complainant to produce opinion of private hand writing expert. It
is submitted that being aggrieved by the said order, the
petitioner preferred Criminal Revision Application No.27 of 2012
before the learned Sessions Court, Surat. Learned Revisional
Court after recording reasons prima facie believed that sale deed
executed in favour of the purchaser is based upon power of
attorney and it is essential to recover the same. Learned
Sessions Court also recorded changing version of the accused,
whereby, firstly he said that power of attorney is lying with State
Bank of Bikaner, but upon investigation it is found that said
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power of attorney is not lying with SBI which has sanctioned and
given loan. Learned Sessions Court believed that not getting
power of attorney or copy thereof is flawing investigation,
accordingly passed order to investigate the offence further.
4.1. Learned advocate Ms.Shah submitted that subsequent
thereto, Head Constable at Pandesara Police Station has carried
out further investigation. She would further submit that looking
to the allegations of offence in FIR and in charge sheet it
indicates that maximum punishment, in event of successful
conviction would be more than 10 years. It is submitted that
instead of investigation by PSO or PI, investigation is carried by
Head Police Constable and recorded statement of two or three
person and came to conclusion that since original power of
attorney is not traceable, no further investigation is possible.
She would further submit that objection to the report and
seeking further investigation was moved before the learned Trial
Court vide Exh.82. Said application without any reason has been
rejected by learned Trial Court by cryptic order and therefore,
another Revision Application was preferred being Criminal
Revision Application No.87 of 2017. Learned Revisional Court
passed order again of cryptic in nature and declined to
investigate offence further under section 173(8) of Cr.P.C. Hence,
this petition. It is submitted that since prosecution has not
obtained forged power of attorney or copy thereof, offence alleged
under section 467, 468 and 471 of IPC could not be proved. She
would further submit that in absence of power of attorney deed,
case of complainant would not stand in absence of forged
document.
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4.2. Learned advocate Ms.Shah further submitted that inaction
on the part of the police and further investigation by
unauthorized person who is not empowered to carry out
investigation but has submitted report, which is confirmed by
learned Trial Court in erroneous order. The error on part of
learned Court below continued as learned Sessions Court has
confirmed the said order by dismissing the Revision. She would
further submit that base of entire accusation is forged power or
attorney. She further submits that accused during the
investigation canged version of power of attorney deed. IO
followed those tainted version and submitted report that since
power of attonrey is not traceable, it could not be placed in
charge sheet papers. She would further submit that if original
power of attorney is not traceable, IO could have obtained
certified copy from office of sub registrar as forged power of
attorney has been used towards executing sale deed and after
obtaining said power of attorney or copy thereof, investigating
officer can send the same for purpose of verifying the signature
on the power of attorney to FSL. Ultimately, such course of
procedure would meet standard of fair investigation.
4.3. In view of above, it is submitted that learned Courts below
have committed serious and gross error in rejecting prayer of the
petitioner.
4.4. Insofar as to meet with observation passed by Co-ordinate
Bench on 25.11.2024 that “further investigation that too at the
instance of complainant after framing of charge is against law
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pronounced by Hon’ble Supreme Court”, learned advocate
Ms.Shah referred to judgment of Hon’ble Apex Court in the case
of Anant Thanur Karmuse v/s. State of Maharshtra [2023 (5)
SCC 802] and submitted that Constitutional Court can direct
further investigation or investigation by some other agency. It is
submitted that purpose of further investigation or fair
investigation is fair trial. She would further submit that
complainant has fundamental right of fair investigation and fair
trial. She would submit that merely filing of charge sheet and
framing of charge would not come in way for further
investigation / re-investigation, if facts so warrant. She would
further submit that power of ordering fresh investigation / de-
novo investigation / re investigation is vested with Constitutional
Court in line of Article 21 of the Constitution of India. The Court
can in given facts and circumstances pass necessary orders for
fair investigation and fair trial. It is submitted that complainant
should not feel that he is orphan under law on the ground that
charge sheet is filed in the manner and charge is framed,
petitioner being complainant cannot seek for further
investigation.
4.5. Making above submission, learned advocate Ms.Shah
submitted to overturn concurrent findings arrived by learned
Trial Courts and pass order for further investigation in the
matter.
5. Per contra, learned advocate Mr.A.M.Parekh for the
accused submitted that charge sheet in the case is filed on
24.02.2006 and first application for further investigation was
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filed by complainant on 24.03.2011. He further submitted that
prior to that petitioner entered into compromise with purchaser
of disputed land and consented to quash FIR and subsequent
proceedings. It is submitted that thus on 09.07.2010 Co-
ordinate Bench of this Court in Cr.M.A.No.5154 of 2010 passed
order to quash FIR and charges against purchasers of the land.
It is submitted that since the petitioner has consented to quash
FIR as well as charge framed against the accused who are
subsequent purchasers, it can be said that petitioner –
complainant has ratified transaction. Thus, as a matter of fact,
there is no reason to believe that power of attorney through
which sale deed was executed was forged.
5.1. Learned advocate Mr.Parekh further submitted that when
application Exh.63 was tendered on 24.03.2011 before the
learned Trial Court, the petitioner did not made averments that
he has consented before the High Court to quash FIR against
some of the accused, who are subsequent purchasers of land.
Even no such averments are made in Revision or in second
round of litigation, orders of which are impugned in this petition.
Therefore, case of the petitioner suffers from principle of
suppression of material facts. It is submitted that according to
order passed by Co-ordinate Bench in Cr.M.A.No.5154 of 2010,
no useful purpose was to be served in permitting further
investigation and trial against petitioner of that petition. It is
submitted that since facts are suppressed before the learned
Trial Court and learned Sessions Court, the petitioner is not
entitled to get any extra ordinary relief before this Court.
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5.2. Upon above submission, learned advocate Mr.Parekh
submitted to dismiss the petition.
6. Learned advocate Mr.Chokshi who is representing other
respondents did not remain present as the said respondents are
formal party and FIR against them are quashed on consent of
petitioners.
7. Learned APP hotly contesting submission of learned
advocate Ms. Shah relied upon judgment of Hon’ble Apex Court
in case of Vinubhai Haribhai Malviya v/s. State of Gujarat
[2019 (17) SCC 1] and submitted that there is no cavil that
Constitutional Court can pass order for further investigation /
de-novo investigation at any point during trial, however, power
of Magistrate to direct further investigation is limited to the stage
of framing of charge of till commencement of trial. It is submitted
that full bench judgment in case of Vinubhai (supra) is also
referred in the judgment Anant Thanur Karmuse (supra), where,
Hon’ble Apex Court observed that power of learned JMFC to pass
order for further investigation is limited till commencement of
trial. Learned APP would submit that power of Constitutional
Court to pass order of further investigation cannot be conflated
with power of learned JMFC to pass order of further
investigation. It is further submitted that perusal of relief
claimed by the petitioner it indicates that the petitioner
essentially challenges order passed by Court below, wherey,
learned courts below have declined to pass order for further
investigation . It is submitted that petitioner cannot claim relief
that at any stage of proceedings, learned JMFC can pass order
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for further investigation.
It is also submitted that the petitioner has not asked any relief
under Article 226 of the Constitution of India to seek further
investigation from the Court but essentially assails order passed
by learned Court below declining to pass order for further
investigation by invoking jursidcition under Article 227 of the
Contitution of India. Thus, in that event, judgment relied upon
by learned advocate Ms.Shah is not applicable to the facts of the
case. Learned APP would submit that Investigating Officer has
carried out detail investigation and conclude with reason that
why power of attorney alleged to have been forged could not be
collected and placed in charge-sheet. Lastly, it is submitted that
in the present case trial is almost at verge of completion, except
complainant and Investigating Officer, all witnesses are
examined by the learned Trial. Thus, looking to this aspect, this
Court may not exercise inherent power to decide case in favour
of the petitioner.
8. Regard had been to rival submissions of both sides and
considering the issue involved in the matter, since the petition is
filed under Article 227 of the Constitution of India, at the outset,
I may refer to scope and ambit of petition filed under Article 227
of the Constitution of India. Five Judges Bench of Hon’ble
Supreme Court in the case of Waryam singh and Anr. v/s.
Amarnath and Anr. (1954) 1 SCC 51 approved ratio laid down
in the case of Dalmia Jain Airways Ltd. Vs/. Sukumar
Mukherjee [1950 SCC Online Cal. 88] and held that power
conferred by Article 227 of the Constitution of India be exercised
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most sparingly and only in appropriate cases in order to keep the
subordinate Courts within bounds of their authority and not for
correcting mere errors. Para 13 of the said judgment reads as
under :-
“13. This power of superintendence conferred by article
227 is, as pointed out by Harries C. J., in Dalmia Jain
Airways Ltd. v. Sukumar Mukherjee(2), to be exercised most
sparingly and only in appropriate cases in order to keep the
Subordinate Courts within the bounds of their authority and
not for correcting mere errors. As rightly pointed out by the
Judicial Commissioner in the case before us the lower courts
in refusing to make an order for ejectment acted arbitrarily.
The lower courts realised the legal position but in effect
declined to do what was by section 13 (2) (i) incumbent on
them to do and thereby refused to exercise jurisdiction
vested in them by law. It. was, therefore, a case which
called for an interference by the court of the Judicial
Commissioner and it acted properly in doing so. In our
opinion there is no ground on which in an appeal by special
leave under article 136 we should interfere. The appeal,
therefore, must stand dismissed with costs.”
9. Recently, Hon’ble Apex Court in the case of K.Valarmathi
v/s. Kumaresan [2025 (0) INSC 606] held in para 8 as under :-
“8. Power of the High Court under Article 227 is supervisory
and is exercised to ensure courts and tribunals under its
supervision act within the limits of their jurisdiction
conferred by law. This power is to be sparingly exercised in
cases where errors are apparent on the face of record,
occasioning grave injustice by the court or tribunal assuming
jurisdiction which it does not have, failing to exercise
jurisdiction which it does have, or exercising its jurisdiction
in a perverse manner.”
10. In background of above aspect, if we examine issue raised
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in this petition, it is limited to questioning legality of the two
orders passed by Courts below. Relief is limited to examine
legality of judgment and order passed by learned Additional
Sessions Judge, Surat in Revision Application No.87 of 2013
which has confirmed order passed by learned CJM, Surat below
Exh.82 in joint trial of Criminal Case No.10020 of 2006 and
Criminal Case No.21409 of 2006.
11. From the arguments, pleadings and record, what could be
noted that dispute raised in this petition has chequred history.
The petitioner who is complainant of FIR being C.R.No.I-228 of
2005, investigation of which is completed and charge sheet is
filed on 24.02.2006, first time came before the learned Trial
Court on 24.03.2011 by filing application Exh.63. Admittedly, by
that time, trial had commenced. Learned Trial Court recorded
myriad reasons to reject the application including on the ground
that trial has commenced. Noticeably, when the application was
filed before the learned Trial Court proceedings of
Cr.M.A.No.5154 of 2010 was already initiated at the instance of
Kishanchand Shrinarayan Tiwari before this Court and on
09.07.2010 in this proceedings complainant gave consent to
quash the complaint. This proceedings were in regard to
quashing of questioned FIR. The petitioners of the petition were
purchasers of the property. This factual aspect though was
within knowledge of petitioner, he did not aver same in the
application Exh.63. Suppression of material fact is thus is
conspicuous and become stark. Learned Trial Court dismissed
the application Exh.63 permitting the petitioner to file report of
private handwriting expert. Learned Sessions Court in Criminal
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Revision Application No.22 of 2012 recorded following reasons to
allow the Revision Application :-
“7. Considering the allegation as they are the recovery of
the alleged forged power of attorney is very crucial, as it is
the only evidence which could reflect as to whether the said
power of attorney is forged or not. The learned lower Court
has observed in the order that the power of attorney is
seized by the investigating agency during investigation. But,
the power of attorney which is seized by the investigating
agency, is the power of attorney dated 30th June 2003,
which is executed by the uncles of the applicant in his
favour, whereas, the sale deeds in question have taken
place on the basis of the power of attorney dated
02.07.2003 The record indicates that the accused Matiwar
Shrinarayan Tiwari, during investigation, had informed the
police that the power of attorney dated 02.07.2003 was
deposited by him with the State Bank of Bikaner and Jalpur
for the purpose of obtaining loan. Pursuant thereto, the
Investigation Officer appears to have inquired with the State
Bank of Bikaner and Jaipur as regards the said. power of
attorney and the said Bank vide communication dated
29.04.2006, addressed to Police Inspector, Pandesara Police
Station has informed that the power of attorney was not
deposited with the Bank by the borrower. Thus, the accused
Matiwar Shrinarayan Tiwari has mis-led the investigating
agency. The investigating agency also having come to know
that the power of attorney is not deposited with the Bank,
does not appear 10 have made any attempts to find out and
recover the said power of attorney. Therefore, the
observation made by the learned lower Court that the power
of attorney is seized by the Investigation Officer is not
correct on the face of record. The said power of attorney
would be the only piece of evidence, which would speak for
itself and demonstrate whether it is forged or not. Under the
circumstances, it would be of utmost importance to seize the
said power of attorney and since the investigating agency
does not appear to have made sufficient attempts to find out
the sald power of attorney, it is required to be directed to
further investigate into the matter and find out the said
power of attorney. Under the circumstances, the presentPage 14 of 21
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revision application deserves to be allowed.”
12. Investigating Officer has carried out further investigation
and filed report (Annexure D) pursuant to order of learned
Sessions Court. Statement of accused was again recorded and he
has stated in his statement that complainant by breaking
opened, has taken possession of power of attorney. Thus, power
of attorney which alleged to have been forged is not traceable.
Report of Investigating Officer on further investigation is objected
by unsuccessfully filing Exh.82. Being aggrieved, again Revision
Application was moved before the learned Sessions Court vide
Revision Application No.87 of 2013. In para 6 learned Sessions
Judge has ascribed following reasons :-
“[6] Heard learned advocates for the pajties and perused the
record of learned lower Court. It is an admitted position that
earlier, the applicant had preferred Criminal Revision
Application No.27 of 2012 before this Court challenging the
order dated 29/11/2011 bassed by learned mal Court
below application Exh.63, wherein, the applicant had
prayed for further investigation to find out the power of
attorney in question. At that time, having regard to the facts
of the matter and considering the fact that certain
observations made by learned lower Court was erroneous,
this Court had allowed the said revision application and had
directed the Investigating Agency to carry out further
investigation and to find out the power of attorney dated
02/07/2003. Pursuant to the said order, the investigation
for finding out the said power of attorney was carried out
and the report as regards the same dated 28/12/2012 has
been submitted before the learned lower Court vide Exh.80,
wherein, it is stated that since the period of 6,7 years has
passed, no fruitful information as regards the power of
attorney could be obtained. It is the case of the applicant
that the police authorities have not made any sincere efforts
for finding out the said power of attorney. When this CourtPage 15 of 21
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had earlier directed the Investigating Agency to carry out
further investigation under Section 173(8) of Cr.P.C. and to
find out the power of attorney in question and it is reported
after investigation that such power of attorney could not be
found out, there is no point in oldering further investigation
time and again for the very same purpose. Hence, the
present application being devoid of any merit, the same is
hereby dismissed.”
13. It appears that complainant intends that investigation be
carried out in particular way he is thinking and as per his point
of view. The complainant who has conveniently compromised
with purchasers with regard disputed property and consented to
quash the FIR, did to seek further investigation against seller.
Noticeably, sale deed executed in favour of the purchasers of the
disputed land who are accused is approved and ratified.
Complainant by giving consent in quashing proceedings still
questions power of attorney through which registered sale deed
is executed as forged one. It is also noticeable that order dated
09.07.2010 passed by Cor-ordinate Bench in Cr.M.A.No.5154 of
2010 is missing from averments in first and second application.
At this stage, it is relevant to refer order passed by Co-ordinate
Bench on 09.07.2010 in Cr.M.A.No.5154 of 2010, whereby,
questioned FIR was quashed in favour of some of the accused
(sic : purchaser of disputed land). It reads as under :-
“The petitioner is the original accused no.3. Against him and
other family members, his brother has filed complaint
AnnexureA being C.R. No.I228/2005 registered before
Pandeshara police station, Surat.
Counsel appearing for parties stated under
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instructions that dispute between two brothers have been
resolved. The petitioner is not attributed with the fabrication
of power of attorney of the complainant. The petitioner was
not aware about any such attempt. Affidavit is filed by the
complainant suggesting that complainant is not
interested in proceeding charge against the petitioner.
In view of the fact that dispute is between close family
members and in view of settlement between the parties, I
see no useful purpose would be served in permitting further
investigation and trial into the allegations against present
petitioner. Fact however, remains that complainant
had put the State machinery into motion making allegations
of commission of of criminal offences against the present
petitioner and others. It was perhaps on account of this
criminal case that parties could arrive at settlement. They
must therefore, pay cost to the State.
Under the circumstances, complaint AnnexureA being C.R.
No.I228/2005 registered before Pandeshara police station,
Surat, is quashed qua the present petitioner, however, on
condition that petitioner and respondent no.2 shall pay
jointly sum of Rs. 15,000/ to the State, which shall be done
within two weeks from today.
Disposed of accordingly.”
14. Explicitly, in nutshell it is an attempt of the petitioner not
to complete trial. Attempt of the petitioner is also found against
principle of fair trial. The petitioner who continued to file
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application before the learned Trial Court intended not to allow
learned Trial Court to complete trial against accused.
15. It is undoubted that to ensure fair investigation or fair
trial, Constitutional Court under Article 226 or Article 32 can
pass order for further investigation / re-investigation or de-novo
investigation. However, such extraordinary power must be
exercised with great caution. (See : Himanshu Kumar v/s.
State of Chhattisgarh [2022 (0) SCC Online 884].
16. In para – 9 of the case of Anant Thanur Karmuse (supra),
Hon’ble Apex Court after referring case of Vinubhai Malviya
(supra) held that power of learned Magistrate to issue order of
further investigation would be limited till stage of trial
commences. Para 9 reads as under :-
“9. Now, so far as the reliance placed upon the decision of
this Court in the case of Vinubhai Haribhai Malviya and
Ors. (supra), relied upon on behalf of the respondent –
accused is concerned, it is required to be noted that in the
said decision, this Court was considering the powers of the
Magistrate. Even in the said decision, it is observed and
held that there is no good reason given by the Court as to
why a Magistrate’s powers to order further investigation
would suddenly cease upon process being issued. It is
further observed that power of the police to further
investigate the offence continues right till the stage the trial
commences. It is further observed that Article 21 of the
Constitution demands no less than a fair and just
investigation. In paragraph 42 as such, it is observed and
held as under:-
“42. There is no good reason given by the Court in
these decisions as to why a Magistrate’s powers to
order further investigation would suddenly cease upon
process being issued, and an accused appearingPage 18 of 21
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before the Magistrate, while concomitantly, the power
of the police to further investigate the offence continues
right till the stage the trial commences. Such a view
would not accord with the earlier judgments of this
Court, in particular, Sakiri [Sakiri Vasu v. State of
U.P., (2008) 2 SCC 409], Samaj Parivartan Samudaya
[Samaj Parivartan Samudaya v. State of Karnataka,
(2012) 7 SCC 407], Vinay Tyagi [Vinay Tyagi v. Irshad
Ali, (2013) 5 SCC 762], and Hardeep Singh [Hardeep
Singh v. State of Punjab, (2014) 3 SCC 92]; Hardeep
Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC
92] having clearly held that a criminal trial does not
begin after cognizance is taken, but only after charges
are framed. What is not given any importance at all in
the recent judgments of this Court is Article 21 of the
Constitution and the fact that the Article demands no
less than a fair and just investigation. To say that a
fair and just investigation would lead to the conclusion
that the police retain the power, subject, of course, to
the Magistrate’s nod under Section 173(8) to further
investigate an offence till charges are framed, but that
the supervisory jurisdiction of the Magistrate suddenly
ceases midway through the pre-trial proceedings,
would amount to a travesty of justice, as certain cases
may cry out for further investigation so that an
innocent person is not wrongly arraigned as an
accused or that a prima facie guilty person is not so
left out. There is no warrant for such a narrow and
restrictive view of the powers of the Magistrate,
particularly when such powers are traceable to Section
156(3) read with Section 156(1), Section
2(h) and Section 173(8) CrPC, as has been noticed
hereinabove, and would be available at all stages of
the progress of a criminal case before the trial actually
commences. It would also be in the interest of justice
that this power be exercised suo motu by the
Magistrate himself, depending on the facts of each
case. Whether further investigation should or should
not be ordered is within the discretion of the learned
Magistrate who will exercise such discretion on the
facts of each case and in accordance with law. If, for
example, fresh facts come to light which would lead to
inculpating or exculpating certain persons, arriving atPage 19 of 21
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the truth and doing substantial justice in a criminal
case are more important than avoiding further delay
being caused in concluding the criminal proceeding, as
was held in Hasanbhai Valibhai Qureshi [Hasanbhai
Valibhai Qureshi v. State of Gujarat, (2004) 5 SCC
347]. Therefore, to the extent that the judgments
in Amrutbhai Shambhubhai Patel [Amrutbhai
Shambhubhai Patel v. Sumanbhai Kantibhai Patel,
(2017) 4 SCC 177], Athul Rao [Athul Rao v. State of
Karnataka, (2018) 14 SCC 298] and Bikash Ranjan
Rout [Bikash Ranjan Rout v. State (NCT of Delhi),
(2019) 5 SCC 542] have held to the contrary, they
stand overruled. Needless to add, Randhir Singh
Rana v. State (Delhi Admn.) [(1997) 1 SCC 361] and
Reeta Nag v. State of W.B. [(2009) 9 SCC 129] also
stand overruled.”
17. In the present case, as it is undeniable that when first
application was made before the learned Trial Court seeking
relief of further investigation, the matter had travelled beyond
stage of framing of charge and trial had already commenced, yet
learned Sessions Court has passed order for further
investigation but ultimately further investigation did not yield
any result. Again second round of litigation was started, but
petitioner remained unsuccessful. To be noted that in both
round the petitioner has suppressed order of Co-ordinate Bench
passed in Special Criminal Application No.5154 of 2010 and now
except Investigating Officer and complainant, no other witness
are to be examined. All this facts conclude that learned Courts
below have not committed any error in passing impugned orders.
18. Case of Anant Karmuse (supra) defines power of
Constitutional Court to pass order for further investigation / re-
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investigation or de-novo investigation, it would not render any
assistance to petitioner’s case, as it is essentially challenge
decline to pass order for further investigation by learned JMFC
in case where trial was already commenced.
19. In premises of aforesaid, this Court find no reason to
interfere with the impugned orders as non of the orders
impugned in the matter lead to miscarriage of justice.
20. In view of above, the petition fails and accordingly, stands
dismissed. Rule is discharged. Interim relief granted earlier, if
any, stands vacated. Consequently, Criminal Misc. Application
No.1 of 2018 for stay does not survive and accordingly, stand
disposed of.
(J. C. DOSHI,J)
SATISH
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