CR.MA/1376520/2008 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 13765 of 2008 With SPECIAL CRIMINAL APPLICATION No. 2163 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE K.A.PUJ ========================================================= 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 ? ========================================================= ASHESH PRAVINCHANDRA MANDAVIA - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR EE SAIYED for Applicant(s) : 1, MS FALGUNI PATEL Assistant Government Pleader for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 2, MR ZUBIN F BHARDA for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.A.PUJ Date : 26/11/2008 ORAL JUDGMENT 1. The petitioner / ori. accused has filed CR.MA/1376520/2008 2/14 JUDGMENT Criminal Misc. Application No.13765 of 2008 for quashing and setting aside the Criminal Complaint/FIR lodged by the respondent No.2 being Criminal Complaint as C.R. No.I-77 of 2008 with the Padhadhari Police Station. 2. Special Criminal Application No.2163 of 2008 is filed by the ori. accused for transfer of the investigation of C.R. No.I-77 of 2008 from the file of Padhadhari Police Station, Rajkot to any other independent agency to investigate the complaint. 3. In Criminal Misc. Application No.13765 of 2008 this Court has issued notice on 22.10.2008. On 21.11.2008, this Court has passed further order in both the matters and directed the Investigating Officer to remain personally present before the Court today alongwith the records of the investigation made by him so far. The learned Assistant Government Pleader was directed to convey the CR.MA/1376520/2008 3/14 JUDGMENT said message to the Investigating Officer. Today when the matters are taken up for hearing the Investigating Officer could not remain present. It appears that the message could not be communicated to him. However, the details required by the Court are produced by both the sides. 4. Mr.E.E.Saiyed, learned advocate appearing for the petitioner / ori. accused has submitted that absolutely false and frivolous complaint is filed against the petitioner. There was no involvement of the petitioner. The petitioner has not committed any offence nor there is anything in the complaint which establishes the involvement of the petitioner. He has further submitted that the complaint was filed by the power of attorney holder which is not maintainable. The complaint was filed very late. The complaint was filed for commission of offence under Section 406 read with Section 420 of CR.MA/1376520/2008 4/14 JUDGMENT the IPC and the transactions involved are of civil nature for which at the most if there is any grievance against the petitioner the aggrieved party can file Civil Suit. In no circumstances criminal complaint can be filed against the petitioner. He has, therefore, submitted that this is a fit case where the Court should interfere in the matter and complaint is required to be quashed and set aside. 5. So far as subsequent application for transfer of the investigation is concerned, Mr.Saiyed has submitted that Anticipatory bail is granted by this Court and the accused approached the Investigating Officer. The complainant and his associates were present in the Police Station and in their presence the Investigating Officer has given a slap. The complainant threatened him to return all his properties otherwise he will have to face dire consequences. He has further submitted CR.MA/1376520/2008 5/14 JUDGMENT that the proper investigation may not be made by the present Investigating Officer and, therefore, investigation should be transferred to other Investigating Officer. 6. As against the submissions made by Mr.Saiyed on behalf of the petitioner – ori. accused Mr.Tushar Mehta, learned Senior Counsel appearing with Mr.Zubin Bharda, learned advocate for the complainant, respondent No.2 herein, has strongly urged that there are very serious allegations against the petitioner. He has committed breach of trust and cheated the complainant and huge amount was misappropriated by him. He has drawn attention of the Court towards certain e-mails, which were exchanged between the parties and from these e-mails, it is obvious that huge amount as asked for was received by the petitioner for purchase of the property and ultimately this amount was used by the petitioner for his own benefits. CR.MA/1376520/2008 6/14 JUDGMENT He has further submitted that within span of one and half year several properties were purchased by the petitioner either in his name or in the name of his family members. There was no adequate source of income through which all these properties can be purchased. When the Investigating Officer asked for the details, the petitioner filed this subsequent petition against the Investigating Officer and sought transfer of investigation. He has further submitted that the scope and ambit of Section 482 of Criminal Procedure Code is very limited. Even with regard to the transfer of investigation, he has submitted that it is not the choice of complainant nor accused to whom the case is to be entrusted and hence on the bald allegations or averments investigation cannot be transferred. 7. In support of his submission Mr.Mehta relied on the decision of Hon'ble Supreme CR.MA/1376520/2008 7/14 JUDGMENT Court in the case of Sanapareddy Maheedhar Seshagiri & Anr. Vs State of Andhra Pradesh & Anr. Reported in AIR 2008 SC 787, which laid down the principle to the effect that under what circumstances the FIR or Criminal Complaint can be quashed and set aside by the Court while exercising its extraordinary jurisdiction under Section 482 of the Criminal Procedure Code. He further relied on the decision of the Hon'ble Supreme Court in the case of Rajesh Bajaj Vs. State NCT of Delhi and others, reported in (1999) 3 SCC 259 which says that if averments in complaint prima facie make out a case for investigation the High Court cannot quash the complaint merely because one or two ingredients of the offence have not been stated in detail. Quashing of complaint on the ground that the complaint disclosed a commercial or money transaction is not justified. 8. So far as transfer of investigation is CR.MA/1376520/2008 8/14 JUDGMENT concerned, he relied on the decision of the Hon'ble Supreme Court in the case of Divine Retreat Centre Vs. State of Kerala and Ors. reported in AIR 2008 SC 1614, wherein it is held that the change of Investigating Officer cannot be directed by exercising inherent powers. On the basis of this submission as well as the case law cited he strongly urged that both the petitions are required to be dismissed. 9. Ms.Falguni Patel, learned Assistant Government Pleader, appearing for the State has submitted that the complaint prima facie discloses an offence under Section 406 and 420 of I.P.C. and hence this Court should not exercise its jurisdiction under Section 482 of the Criminal Procedure Code. She has further submitted that the petition filed by the petitioner for change of Investigating Officer is not sustainable as there is no substance in the allegations. She has, CR.MA/1376520/2008 9/14 JUDGMENT therefore, submitted that both the matters are required to be dismissed. 10. Having heard learned advocates appearing for the respective parties and having considered the submissions and the complaint as well as other documents produced before the Court, this Court is of the view that the complaint prima facie discloses an offence and hence on the plain reading of the complaint it cannot be said that the complaint is required to be quashed at the very threshold. Whether the accused is involved in the commission of crime or whether he has committed any breach of trust or cheated the complainant can be decided only after the investigation is over, charge- sheet is filed before the Court and the Court undertakes the trial. At this stage, the whole issue is premature and hence on the basis of averments and allegations made in the petition the complaint cannot be quashed CR.MA/1376520/2008 10/14 JUDGMENT and set aside. The Hon'ble Supreme Court in the case of Sanapareddy Maheedhar Seshagiri & Anr. Vs State of Andhra Pradesh & Anr. Reported in AIR 2008 SC 787 has laid down certain guidelines and only in certain circumstances the Court can interfere under Section 482 of the Criminal Procedure Code. It is clearly stated that the High Court should be extremely cautious and slow to interfere with the investigation and/or trial of criminal cases and should not stall the investigation and/or prosecution except when it is convinced beyond any manner of doubt that the FIR does not disclose commission of any offence of that the allegations contained in the FIR do not constitute any cognizable offence or that the prosecution is barred by law or the High Court convinced that it is necessary to interfere to prevent abuse of the process of the Court. None of these circumstances can be said to be present in the present case and hence this Court is of CR.MA/1376520/2008 11/14 JUDGMENT the view that the complaint cannot be quashed at this stage. It requires proper investigation and leading of oral as well as documentary evidence. If the Investigating Officer completes his investigation and files charge-sheet in the Court and proceeds with trial, the High Court does not normally interfere. Hence, this Court does not find any substance in the present petition and hence it is accordingly dismissed. 11. So far as Special Criminal Application is concerned, there is no substance in the allegations made against the Investigating Officer and even if this Court shows any inclination it would establish a bad precedent and demoralize the Investigating Officer. The Hon'ble Supreme Court has observed in the above cited judgment that the High Court must also refrain from making imaginary journey in the realm of possible harassment which may be caused to the CR.MA/1376520/2008 12/14 JUDGMENT petitioner on account of investigation of the FIR or complaint. Such a course will result in miscarriage of justice and would encourage those accused of committing crimes to repeat the same. Even in the case of Divine Retreat Centre (Supra) the Hon'ble Supreme Court held that the High Court in exercise of its inherent jurisdiction cannot change the Investigating Officer in the midstream and appoint any agency of its own choice to investigate into crime on whatsoever basis and more particularly on the basis of complaints. Neither the accused nor the complainant or informant are entitled to choose their own investigating agency to investigate a crime in which they may be intended. The Court is, therefore, not inclined to entertain this petition and it is accordingly dismissed. 12. The Court takes note of the fact that despite order of this Court the Investigating CR.MA/1376520/2008 13/14 JUDGMENT Officer could not remain present. The Government Pleader's office should take note that the order passed by the Court should be communicated to the concerned Officer in time. Due compliance of the order should be made. Since the Court has not found any substance in either of these two petitions, the Court has not taken any serious view of non-compliance of its order. Had there been some doubt about the investigation, either the Investigating Officer or the Government Pleader's Office would have been responsible for non-compliance of the order. 13. With these observations this Special Criminal Application is dismissed. 14. Mr.Saiyed, learned advocate appearing for the petitioner asked for stay against the operation, implementation and execution of this order. Mr.Mehta, on the other hand, has objected. There is no stay at any stage nor CR.MA/1376520/2008 14/14 JUDGMENT there is any substance in such a request and hence there is no question of staying this order. The request is, therefore, rejected. (K. A. PUJ, J.) kks