SCR.A/1958/2007 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 1958 of 2007 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= ASHWINKUMAR CHANDULAL SHAH & 1 - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR ARPIT A KAPADIA for Applicant(s) : 1, PUBLIC PROSECUTOR for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 05/02/2008 ORAL JUDGMENT 1. Rule. Mr. L.B. Dabhi, learned Additional Public Prosecutor waives service of notice of rule on behalf of respondent No.1, State of Gujarat and Mr. Y.M. Thakkar, learned advocate waives SCR.A/1958/2007 2/5 JUDGMENT service of notice of rule on behalf of respondents No.2 and 3. 2. Having regard to the facts of the case and by consent of the learned advocates for the parties, the matter is taken up for hearing today. 3. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner challenges the order dated 5th October, 2007 passed by the learned Chief Judicial Magistrate, Godhra below Exhibit-3 in Criminal Case No.2826 of 2004, whereby the application seeking further investigation under section 173(8) of the Code of Criminal Procedure, 1973 (the Code) in connection with the offence registered vide C.R. No. I 75 of 2004 with Godhra Town Police Station, has been rejected. 4. Pursuant to a First Information Report lodged by the petitioner herein, which was registered as Godhra Town Police Station, I-C.R. No.75 of 2004, the investigating officer upon completion of investigation, submitted charge sheet on 7th August, 2004. It appears that at that time, the report of the Hand Writing Expert was awaited. According to the petitioner, subsequently upon receipt of the report of the Hand Writing Expert on 29th November, 2004, it was clear that the signature of the petitioner/complainant was SCR.A/1958/2007 3/5 JUDGMENT forged and fabricated. The petitioner therefore, filed an application below Exhibit-3 under section 173(8) of the Code seeking further investigation. The learned Chief Judicial Magistrate, Godhra by the impugned order dated 5th October, 2007 rejected the said application. Being aggrieved, the petitioners have approached this Court challenging the same and praying that further investigation be directed under the provisions of section 173(8) of the Code. 5. Heard Mr. J.B. Pardiwala, learned advocate with Mr. Arpit Kapadia, learned advocate for the petitioners, Mr. L.B. Dabhi, learned Additional Public Prosecutor for respondent No.1, State of Gujarat and Mr. Y.M. Thakkar, learned advocate for the respondents No.2 and 3. 6. Learned advocates for the parties have jointly submitted that this Court may not assign detailed reasons while deciding this application as the same would be likely to affect the final outcome of the criminal case. 7. As can be seen from the impugned order dated 5th October, 2007, the learned Judicial Magistrate has held that it is the say of the petitioner that the charge against the accused No.1 and 2 is that they have forged the signature of the petitioner in the notice under section 135-D of the Bombay Land Revenue Code and that the SCR.A/1958/2007 4/5 JUDGMENT petitioner was not present and had not put his signature. That a Hand Writing Expert's opinion has been sought for which shows that the signature is not that of the petitioner. That charge sheet has been submitted and that the complainant has stated that according to the Hand Writing Expert the petitioner/complainant has not signed the same. That by this application the complainant has prayed for further investigation under section 173(8) of the Code to join the person who had forged his signature as an accused which is not just and proper. Though the impugned order runs into 10 pages, the same merely records the facts and submissions advanced by the learned advocates for the parties. No reasons whatsoever have been assigned as to why the application should not be accepted. 8. Considering the submissions advanced by the learned advocate for the petitioner, this Court is of the view that the ends of justice would best be served if further investigation under section 173(8) of the Code as prayed for by the petitioner is directed and at the same time with a view to balance the equities, it is further directed that the investigation be completed within a stipulated time frame so that the apprehension of the respondents No.2 and 3 that the trial would needlessly be delayed, is also allayed. SCR.A/1958/2007 5/5 JUDGMENT 9. For the foregoing reasons, the petition is allowed. The impugned order dated 5th October, 2007 passed by the learned Chief Judicial Magistrate, Godhra below Exhibit-3 in Criminal Case No.2826 of 2004 is hereby quashed. The Investigating Officer is directed to conduct further investigation under section 173(8) of the Code only qua the request made by the petitioner, namely to inquire as to who has signed the notice under section 135(D) by posing as the petitioner and arraign such person as an accused. The aforesaid exercise shall be carried out within a period of two months from today. It is made clear that the aforesaid time limit shall not be extended in any event. Rule is made absolute accordingly. 10.A copy of this order be made available to the learned Additional Public Prosecutor, who shall communicate the same to the concerned investigating officer. Direct service is permitted. (H.N.DEVANI, J.) shekhar/-