CR.RA/236/2007 1/48 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 236 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE K.M.MEHTA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= PRAGNESH HARIPRASAD PARIKH - Applicant(s) Versus THE STATE OF GUJARAT THRO & 8 - Respondent(s) ========================================================= Appearance : MR K.B. ANANDJIWALA with MR. VM TRIVEDI for Applicant(s) : 1, MR. K.C. SHAH, APP for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 3 MS AMEE YAJNIK for Respondent(s) : 2,5 - 6. MR MANISH J PATEL for Respondent(s) : 4, MR BHUNESH C RUPERA for Respondent(s) : 7, MR MITESH R AMIN for Respondent(s) : 8 - 9. ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.MEHTA Date : 14/5/2007 CAV JUDGMENT Pragnesh Hariprasad Parikh, applicant, CR.RA/236/2007 2/48 JUDGMENT original accused No. 2, has filed this Criminal Revision Application under Section 397 of the Code of Criminal Procedure (hereinafter referred to as “the Code”) with a prayer that this Court may be pleased to quash and set aside the order dated 30.4.2007 passed by the City Sessions Court in Revision Application No. 176 of 2007. By the impugned judgement the learned Sessions Judge has directed that so far as the present applicant No. 2 is concerned, he should remain present before the Investigating Officer from morning 9.00 to evening 6.00 for two days i.e. on 1.5.2007 and 2.5.2007 for interrogation. The learned Sessions Judge thereby partly allowed the Revision Application filed by the State against the order dated 5.4.2007 passed by the learned Chief Metropolitan Magistrate, Ahmedabad in CID Crime First Crime Register No. 1 of 2006- an application for remand. The learned Chief Metropolitan Magistrate by his order dated 5.4.2007 was pleased to reject the remand application filed by the CID Crime, Ahmedabad. 2. The facts giving rise to this Criminal Revision Application are as under: CR.RA/236/2007 3/48 JUDGMENT 3. Bhavanbhai Nathubhai Desai, original complainant (hereinafter referred to as “the complainant”) had filed complaint on 17.10.2006 through his advocate before the learned Chief Metropolitan Magistrate, Court No. 13, Ahmedabad. In the said complaint it has been stated as under: 3.1 There was Natraj Cinema situated on the Ashram Road, Ahmedabad and Dairy Den became a tenant of Natraj Cinema and one Shri Harishbhai Fulchandbhai Shah is the owner of the said Dairy Den. The complainant is working as Security Officer of Devanshi Enterprise who is looking after security of the said Dairy Den. 3.2 He has stated that he was present on his duties at 6 O'clock in the morning on 8.10.2006. At that time accused Nos. 1 to 9 i.e. namely, (1) Yogendra Ratilal Patel, (2) Pragnesh Hariprasad Parikh, (3) Amit Gajjar (4) Saurabh Desai, (5) Ashok Mistry, (6) Arvind Mistry (7) Chetan @ Gai (8) Snehal Hariprasad Parikh (9) Kokilaben Bhanusinhji Desai came with about 30 to 40 persons to the parlour of CR.RA/236/2007 4/48 JUDGMENT Dairy Den and two persons placed a revolver on his forehead and dragged him to the backside of Natraj Cinema towards a temple. They told him that if the complainant made a slightest noise, they would kill him. The accused had started demolishing Ice Cream Parlour of the Company. At that time the complainant informed accused No. 3 Amitbhai Gajjar that let him inform to the persons of the Company. Accused Nos. 1 and 2 informed him to keep mum and did not allow him to telephone. The other person namely Pankajbhai came at about 8 O'clock and he was also confined with the complainant. 3.3 Thereafter, Shri Pankajbhai and the complainant were freed at about 11 O'clock and Shri Pankajbhai and the complainant went to the parlour and saw that the furniture of the parlour, Ice Cream Machine, Freeze, Computer, Cash box and other articles with cash amount of Rs. 40,000/- were looted and damage was done. Thereafter, both of them informed their manager Shri Kaushikbhai. He immediately reached the parlour. Then he took them to the factory at Kochrab-Paldi. When they reached there, their security officer Bharatsinh told that CR.RA/236/2007 5/48 JUDGMENT some unknown persons came with a truck and told that Kaushikbhai had sent them and they threw counter, table, freeze and other articles and ran away with the truck (with all goods). 3.4 Thereafter, the complainant filed complaint in writing on 8.10.2006 to Navrangpura Police Station. The Police Station Officer accepted the same but the police has not taken any cognizance. No investigation was made and an offence was also not registered. The police did not respond properly and therefore the complainant was required to file complaint before the learned Chief Metropolitan Magistrate on 17.10.2006. 3.5 It was further stated therein that all these accused along with 30 to 40 persons rushed at their parlance. They arranged a pre-planned conspiracy by an unlawful assembly and looted the furniture and cash of parlour and thereby committed an offence. It was further alleged that accused in this case are rich persons and have political influence. They informed the master of the complainant that “you can CR.RA/236/2007 6/48 JUDGMENT do nothing to us. Police or Court would not do any damage to us”. In view of the same, the present complaint has been filed with request to assign the complaint to the Crime Branch. 3.6 It was further pressed that the learned Chief Metropolitan Magistrate may pass an order directing to investigate the offence properly. It was further pressed that an order assigning the investigation to an impartial police officer may be passed as muddamal worth Rs. 44 lakhs is required to be recovered. The complainant stated name of some of the witnesses in support of his case. 3.7 The learned Chief Metropolitan Magistrate, Court No. 13, Ahmedabad, after going through the complaint by his order dated 17.10.2006, held that, considering the complaint of the complainant, the accused have committed a serious offence and flouted the orders of the Civil Court and therefore it is necessary to make investigation of the offence. As it is not possible to initiated an inquiry by a Court, it is necessary to send this complaint to the police so that lawful action can be taken by making just CR.RA/236/2007 7/48 JUDGMENT investigation. Considering all these facts and circumstances and also considering an impartial and just police investigation is necessary in this matter, the learned Chief Metropolitan Magistrate has passed the following order: “The complaint be sent to P.I. (Senior), Navrangpura, for investigation under Section 156(3) of the Cr.P.C. The P.I. (Senior) himself shall make an inquiry and report to this Court within 5 days”. 3.8 Section 156 of the Code provides Police Officer's power to investigate cognizable case. Section 156(3) of the Code Provides any Magistrate empowered under Section 190 of the Code may order such an investigation as above mentioned. Section 190 of the Code provides cognizance of offences by Magistrates. 4. In view of the fact that the accused are rich and influential persons, nothing happened. In view of this, Bhavanbhai Nathubhai Desai, the CR.RA/236/2007 8/48 JUDGMENT complainant, was constrained to file Criminal Revision Application No. 299 of 2007 before this Court on 15.2.2007 with a prayer that this Court may direct opponent No. 1 State of Gujarat to hand over the investigation of case No. M Case No. 1/2006, Navrangpura Police Station, to DIG State of Gujarat or to CID Crime City of Ahmedabad or in the alternative to hand it over to CBI and to make further investigation of the case in accordance with law. In the said application this Court (Coram: K.S. Jhaveri, J) was pleased to pass the following order on 22.3.2007. “In the meantime, CID (Crime), State of Gujarat will carry out investigation, in connection with M. Case No. 1/06 registered with the Navrangpura Police Station and will submit a detailed report thereof before this Court within a period of ninety days from the date of receipt of the writ of this Court. It is clarified that this order is passed by consensus and the parties have not invited reasons. Direct service is CR.RA/236/2007 9/48 JUDGMENT permitted.” 5. In view of the order passed by this Court, CID Crime filed remand application on 5.4.2007 before the learned Chief Metropolitan Magistrate, Ahmedabad, against all the accused. In the said application it was further stated that as regards the present accused, he had also filed an application for anticipatory bail before this Court and this Court (Coram: K.S. Jhaveri, J) passed order on 8.3.2007 granting anticipatory bail to the accused. However, in para 4 of the said order it was stated that it would be open to the Investigating Officer to file an application for remand, if he considers it proper and just, and the concerned Magistrate would decide it on merits. 6. Pursuant to that order, the CID (Crime) has filed application for remand of the accused. It was stated that in this case large amount of goods have been taken away by the accused which have been stated on pages 4 and 5 of the application and large muddamal is required to be recovered. Even the CR.RA/236/2007 10/48 JUDGMENT offence has been taken at whose instance, that also has to be considered. It was further stated that after committing the offence, all the accused are absconding and therefore they have decided to investigation particularly in view of the order passed by this Court. In the said application it was stated that when the investigation was carried out all the accused have not given any correct information. It was further stated that they have to recover large amount of goods. They have to also inquire as to at whose instance the aforesaid incident dated 8.10.2006 took place. The accused have taken goods in which vehicle and what is the number of vehicle and where they have hidden the muddamal and thereafter they have to recover the goods which have been stolen by the accused. In view of the same, they have to detain the accused and investigate the offence. It was further stated that after the incident all the accused are absconding and where they have stayed, that is to be inquired. Therefore the present accused, namely, Pragneshbhai Hariprasad Parikh as well as other accused viz. Amitkumar Vishnuprasad Gajjar are required to be interrogated. CR.RA/236/2007 11/48 JUDGMENT Hence the CID Crime prayed for 7 days remand of both the accused. 7. The learned Chief Metropolitan Magistrate, Court No. 13, Ahmedabad, by his order dated 5.4.2007 was pleased to reject the said Remand Application but only directed that for 3 (three) days from 7.4.2007 the accused, namely, Pragneshbhai Hariprasad Parikh and Amitkumar Vishnuprasad Gajjar, will remain present before the Investigating Officer at 5.30 p.m. And they will co-operate with the investigation. 8. Being aggrieved and dissatisfied with the aforesaid order dated 5.4.2007 passed by the learned Chief Metropolitan Magistrate, Court No. 13, Ahmedabad, the State filed Criminal Revision Application No. 176 of 2007 before the learned Sessions Judge, Ahmedabad, on 17.4.2007. In the said application, it was stated that as the offence against the accused are serious, a detailed investigation is necessary against the accused. It was the duty of the learned Magistrate to inquire as to whether offence under section 395 or Section 397 CR.RA/236/2007 12/48 JUDGMENT is occurred or not. The learned Chief Metropolitan Magistrate, Ahmedabad, has only stated that as accused have obtained anticipatory bail, remand cannot be given. The entire order of the learned Chief Metropolitan Magistrate not granting remand of the accused is a final order and therefore Revision Application under Section 397 of the Code is maintainable at law. 9 The learned Sessions Judge, Ahmedabad, by his judgement and order dated 30.4.2007, has observed that the lower Court has not considered properly provisions of Section 395 and 397 of the I.P.C. Accused No. 2 is a transferee of the present property and accused No. 3 Amit Gajjar is a Corporation Engineer. It was stated that in this case the accused have taken goods worth Rs. 44 lakhs and they have come with 30 to 40 people who have committed the offence and at whose instance the work has been done is required to be investigated. As per the report of the CID (Crime), some of the accused are arrested and some of the accused are absconding. In view of the seriousness of the offence and the record produced and also the statement of some of the witnesses the CR.RA/236/2007 13/48 JUDGMENT Revision Application under Section 397 of the Code is maintainable at law particularly in view of the judgement of this Court in the case of GOPALBHAI CHATURBHAI AMIN VS. STATE OF GUJARAT reported in 2005(8) Gujarat High Court Judgement 419. The learned Sessions Judge further considered that even the High Court while granting bail reserved liberty to the Investigating Officer that they can pray for remand. Even if the accused got anticipatory bail, remand application is maintainable at law. Therefore, in view of the seriousness of the offence, the learned Sessions Judge held that as far as present accused, Pragneshbhai Hariprasad Parikh, is concerned, he should remain present from morning 9 O'clock to evening 6 O'clock on 1.5.2007 and 2.5.2007 before the Investigating Officer for interrogation. The said order was passed on 30.4.2007. 10. Being aggrieved and dissatisfied with the aforesaid order of the learned Sessions Judge dated 30.4.2007, the present Criminal Revision Application is filed by accused No. 2 Pragnesh Hariprasad Parikh on 2.5.2007. CR.RA/236/2007 14/48 JUDGMENT 11. On behalf of the applicant, I have heard Mr. Kishore Anandjiwala, learned advocate with Mr. V.M. Trivedi, learned advocate. He has submitted that the order of the learned Chief Metropolitan Magistrate dated 5.4.2007 wherein the learned Magistrate has not granted remand and rejected the application, is an interlocutory order and therefore Criminal Revision Application under Section 397 of the Code it was not maintainable at law. Therefore, the exercise of revisional powers by the learned Sessions Judge in the said Criminal Revision Application is absolutely against the settled law laid down by the Hon'ble Supreme Court as well as this Court. 12.1 It was further stated that after custodial interrogation as directed by the learned Chief Judicial Magistrate, the applicant has applied for regular bail on 3.4.2007 and after hearing the State and the Inquiry Officer, the learned Sessions Judge, Ahmedabad, was pleased to grant regular bail on 9.4.2007 and therefore on the day of the order on 30.4.2007 the applicant was on regular bail and was CR.RA/236/2007 15/48 JUDGMENT not in judicial custody and therefore the learned Sessions Judge was not justified in granting police custody of the applicant without first taking the applicant in custody and therefore also the order of the learned Sessions Judge, Ahmedabad, is contrary to provisions of law and deserves to be quashed and set aside. 12.2 It was further submitted that the learned Sessions Judge has not properly appreciated the principle laid down under Section 167 of the Cr.P.C. which provides for procedure when investigation cannot be completed in twenty four hours. 13. In support of the aforesaid contention, the learned counsel for the applicant accused has relied on the judgement of this Court (Coram: Bankim N. Mehta, J) in the case of KAPIL ASHOKKUMAR JAIN VS. STATE OF GUJARAT in Special Criminal Application No. 1697 of 2005 decided on 7.12.2005. In Kapil Ashokkumar Jain's case the facts were that the learned Judicial Magistrate, First Class, Surat, rejected the application for police remand of the CR.RA/236/2007 16/48 JUDGMENT petitioners for investigation by his order dated 23.9.2005. Against the said order, the State filed Revision Application. The learned Sessions Judge by his order dated 13.11.2005 exercising power under Section 397 of the Cr.P.C. quashed and set aside the order of the learned Judicial Magistrate, First Class, rejecting the application for police remand of the petitioners and thereby the learned Sessions Judge granted police remand of the petitioenrs for 24 hours. 13.1 Being aggrieved and dissatisfied with the said order of the learned Sessions Judge, Special Criminal Application under Section 482 of the Code was filed before this Court. It was the main contention that the Revision Application filed by the State before Sessions Court against the order not granting remand is not maintainable at law. The learned Judge has referred to the judgement of the Hon'ble Apex Court in the case of State Represented by Inspector of Police and others Vs. N.M.T. Joy Immaculate reported in (2004) 5 SCC 729 particularly para 13 of the said judgement and in para 7 of the CR.RA/236/2007 17/48 JUDGMENT judgement in the case of Kapil Ashokkumar Jain this Court has observed as under: “In view of above, the order of learned Presiding Officer, Fast Track Court, Surat, partly allowing the Revision Application filed under Section 397 of Code of Criminal Procedure and granting 24 hours police remand of the petitioners is erroneous and is required to be quashed and set aside. However, it is made clear that this order is passed without entering into the merits of the case.” 14. On the other hand Shri K.C. Shah, learned APP, has stated that the present Criminal Revision Application filed by the accused under Section 397 of the Code against the order of the learned Sessions Judge whereby the learned Sessions Judge has directed that the accused must remain present before the Investigating Officer, is purely simple and interlocutory order as envisaged under Section 397 of the Code is not maintainable at law. The said order CR.RA/236/2007 18/48 JUDGMENT of the learned Sessions Judge cannot affect the progress of the trial or its decision in any manner. The order is pure, simple, interlocutory order and in view of bar created by sub-section (2) of Section 397 the Revision against the said order by the present accused is not maintainable. In support of the same, he has relied on the judgement of the Hon'ble Supreme Court in the case of STATE REPRESENTED BY INSPECTOR OF POLICE AND OTHERS VS. N.M.T. JOY IMMACULATE reported in (2004) 5 SCC 729. The learned APP heavily relied on paragraph Nos. 12 and 13 of the said judgement. In paragraph Nos. 12 and 13 of the said judgement the Hon'ble Supreme Court has observed as under: 14.1 “para 12 – Same question has recently been considered in K.K. Patel V. State of Gujarat. In this case a criminal complaint was filed against the Superintendent of Police and Deputy Superintendent of Police alleging commission of several offences under the Indian Penal Code and also under Section 147-G of the Bombay Police Act. The CR.RA/236/2007 19/48 JUDGMENT Metropolitan Magistrate took cognisance of the offence and issued process to the accused, who on appearance filed a petition for discharge on the ground that no sanction as contemplated by Section 197 CrPC had been obtained. The Metropolitan Magistrate dismissed the petition against which a revision was filed before the Sessions Judge, who allowed the same on the objection raised by the accused based upon Section 197 Cr.PC and also Section 161(1) of the Bombay Police Act, which creates a bar of limitation of one year. The revision preferred by the complainant against the order of discharge was allowed by the High Court on the ground that the order passed by the Metropolitan Magistrate rejecting the prayer of the accused to discharge them was an interlocutory order. In the appeal preferred by the accused, this Court after referring to AMAR NATH V. STATE OF HARYANA (1977) 4 SCC 137, MADHU LIMAYE V. STATE OF MAHARASHTRA (supra) and V.C. SHUKLA V. STATE CR.RA/236/2007 20/48 JUDGMENT 1980 Supp SCC 92 held that in deciding whether an order challenged is interlocutory or not, as for Section 397(2) of the Code, the sole test is not whether such order was passed during the interim sage. The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings. If so, any order passed on such objections would not be merely interlocutory in nature as envisaged in Section 397(2) of the Code. It was further held that as in the facts of the case, if the objections raised by the accused were upheld, the entire prosecution proceedings would have been terminated, the order was not an interlocutory order and consequently it was revisable. 14.2 Para 13 – Section 167 CrPC empowers a Judicial Magistrate to authorize the detention of an accused in the custody of police. Section 209 CrPC confers power upon a Magistrate to remand an accused to custody CR.RA/236/2007 21/48 JUDGMENT until the case has been committed to the Court of Session and also until the conclusion of the trial. Section 309 CrPC confers power upon a court to remand an accused to custody after taking cognisance of an offence or during commencement of trial when it finds necessary to adjourn the enquiry or trial. The order of remand has no bearing on the proceedings of the trial itself nor can it have any effect on the ultimate decision of the case. If an order of remand is found to be illegal, it cannot result in acquittal of the accused or in termination of proceedings. A remand order cannot affect the progress of the trial or its decision in any manner. Therefore, applying the test laid down in MADHU LIMAYE CASE it cannot be categorised even as an “intermediate order”. The order is, therefore, a pure and simple interlocutory order and in view of the bar created by sub- section (2) of Section 397 CrPC, a revision against the said order is not maintainable. CR.RA/236/2007 22/48 JUDGMENT The High Court, wherefore, erred in entertaining the revision against the order dated 6.11.2001 of the Metropolitan Magistrate granting police custody of the accused Joy Immaculate for one day.” 14.3 Thereafter in paragraph No. 19 of the said judgement the Hon'ble Supreme Court has stated that the appeal filed by the State is allowed and the impugned judgement and order of the High Court dated 11.4.2002 is set aside. 14.4 The learned APP, has further relied on the judgement of this Court in the case of GOPALBHAI CHATURBHAI AMIN VS. THE STATE OF GUJARAT reported in (2005) 8 G.H.J. 419. In the said judgement after referring to para 13 of the judgement of the Hon'ble Supreme Court in the case of STATE VS. N.M.T. JOY IMMACULATE (supra) my learned brother Mr. Justice D.N. Patel has in Gopalbhai C. Amin's case (supra) observed as under: 14.5 “From the aforesaid paragraph it is clear CR.RA/236/2007 23/48 JUDGMENT that there is vast difference between the grant of remand and rejection of the remand. The whole decision of the Hon'ble Supreme Court reported in (2004) 5 SCC 729, was for grant of remand, which is held as an interlocutory order and not revisable. If the remand is rejected and the remand of the accused is not given to the police, it adversely affects the right of the prosecution of carrying out investigation. Right to carry out investigation and by which method, is exclusive powers of the State. Custodial interrogation, is one of the well known methods of investigation and therefore when the remand is not granted, it affects vitally and adversely, the investigation but if the same is granted, then as per para 13 of the aforesaid Judgement, even if the remand is granted, illegally, it does not affect finality of the case and therefore grant of remand is interlocutory order, but converse is not true and therefore, revision application CR.RA/236/2007 24/48 JUDGMENT preferred by the prosecution against the order passed by the Judicial Magistrate, First Class, before the