IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No 182 of 2004 For Approval and Signature: HON'BLE MR.JUSTICE C.K.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- CHANDAN PANALAL JAISWAL Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Criminal Application No. 182 of 2004 MR A.D. SHAH, LD. COUNSEL WITH MR SAURIN A SHAH for Petitioner No. 1-2 MR AD OZA, PUBLIC PROSECUTOR for Respondent No. 1 .......... for Respondent No. 2-5 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE C.K.BUCH Date of decision: 15/04/2005 CAV JUDGEMENT 1. Heard ld. Counsel Mr. AD Shah for the petitioners and ld.PP Mr. AD Oza for the State. 2. Invoking jurisdiction of this Court under Article 226 R/w Article 21 of the Constitution of India, the petitioners -original accused of two difference offences registered as (i) I.CR No.2/2004 by Shahibagh Police Station, Ahmedabad and, (ii) I.CR No. 23/2004, by Naranpura Police Station, have prayed to handover the investigation of the said crime to respondent No.5 Central Bureau of Investigation, Gandhinagar, alleging that the investigating agency of both the crimes have failed in carrying out investigation objectively and some unfairness is also shown towards the accused persons during investigation, and collecting the evidence. It is further prayed that respondent No.5 CBI be directed to ascertain genuineness and authenticity about the plea of "alibi" raised by the petitioners accused from the beginning before the Investigating Officer and after carrying out the investigation into the said aspect and to submit is report to the concerned criminal court. Anticipating the favourable result, the petitioners have also prayed that they should be exonerated from both the alleged offences because they were neither present during the commission of the offence nor are involved in any of these two offences, and they have been falsely implicated. 3(i). The present petition was moved by the petitioners on 17.02.2004, prior to filing of chargesheet -report under Sec.173(2) of CrPC, but, I am told that before this Court could pass detailed order after hearing the parties on merits, in view of the strong resistance placed by the State even as to the admission of the petition, the ld. trial Judge after committal of the criminal case, has now framed the charge so far as Sessions Case No.240/2004 is concerned arising out of I.CR No. 23/2004 registered by Naranpura Police Station for the offences punishable under Sec.306 etc. of Indian Penal Code. In response to the facts placed by affidavit-in-reply filed by Mr. PN Barot, ACP, "F" Division of City of Ahmedabad dated 07.04.2005 and the documents attached in support of the affidavit, ld. Counsel Mr. AD Shah appearing for the petitioners has fairly accepted that the prayer as to handing over investigation to respondent No.5 CBI obviously may not be granted because the petitioners, at the time of hearing of the application preferred under Sec.227 of CrPC in connection with the crime i.e. I.CR No.23/2004, have not pressed the plea of "alibi" very seriously . It is contended that the offence in reference to the commission of suicide by the victim girl Bijal Joshi after certain days or hours of commission of alleged rape on her in Hotel Ashoka Palace and, when the petitioners were in custody, and, therefore, the question of plea of "alibi" would not be a sole governing factor for framing ofthe charge of suicide and, therefore, according to ld. Counsel Mr. AD Shah, the present petition be treated as a petition for one of the two offences and he has concentrated his arguments continuing prayer made in the petition qua the first offence i.e. I.CR No.2/2004 registered by Shahibagh Police Station for the offences punishable under sections 376, 324, 328, 323, 342, 114 of Indian Penal Code and Sec.66(1) and 85(1)(3) of Bombay Prohibition Act. The accused are facing trial of three different cases i.e. Sessions Case No. 239/2004, 240/2004 and 241/2004 and now since the accused have decided to face the charges in Sessions Case No. 240/2004, a submission made on behalf of the petitioners is that merely because they have accepted to face the charge for the offence punishable under Sec.306 etc. of IPC, it should not be even impliedly construed or interpreted that they had withdrawn their plea of "alibi" placed before the Investigating Agency and their request to grant appropriate relief from the Court. This submission is advanced in light of the averments made in affidavit-in-reply (para-7 page-81) of ACP Shri PN Barot. (ii) The petitioners have been arrested on 04.01.2004 by Shahibagh Police for their involvement in the first offence i.e. I.CR No.2/2004 on the basis of the complaint lodged by Ms. Bijal Joshi- prosecutrix and they were in judicial custody on the day on which she committed suicide on 07.01.2004 as a result of which second offence i.e. I.CR No. 23/2004 came to be registered by Naranpura Police Station for the offence punishable under sec.306 etc. of IPC and both the petitioners came to be arrested in connection with the said offence on account of the complaint given by Ms. Vaishali Joshi- sister of prosecutrix Bijal Joshi. 4.(i) It is contended by the petitioners that from the day one of their arrest, they had intimated to the investigating agency namely respondent No.2 Shri SP Oza, ACP of City of Ahmedabad and other police officers that on intervening night of 31.12.2003 and 01.01.2004 when prosecutrix Bijal was allegedly raped, the petitioners were in the company of their friends elsewhere during the said period at different places. Meaning thereby both were at two or more number of places but not at the place of offence. Friend circle of both the petitioners is different and they have been falsely implicated in the so-called crime of committing gang rape. The allegation that they were even present at the place where alleged rape was committed, is absolutely false and is far from truth. It is submitted that in their detailed statements recorded by the Investigating Officer Shri Oza, they have placed their say with other relevant details and they are consistent so far as their plea of "alibi" is concerned. The grievance is that the investigating agency, for the reasons best known, had taken no steps to ascertain the genuineness about their say. It is alleged that ignoring the stand taken by the petitioners, the investigation proceeded in contrary direction and investigating agency has attempted to demolish the plea of "alibi" and acted in a negative manner. The Investigating Agency has deliberately ignored the result of scientific tests like DNA Finger Print, Lie Detector Test etc. (ii) During oral submissions, ld. counsel appearing for the petitioners Mr. Shah and ld. PP Mr. Oza have also referred the details of various mobile phones used on the relevant day and time by the petitioners and other co-accused persons and mainly accused Sajal Jain and two star witnesses i.e. prosecutrix Bijal Joshi and her sister Vaishali Joshi, and it has argued by ld. Counsel Mr. Shah that certain printouts obtained from Cellular Operators were not even supplied to the petitioners and on request, at subsequent stage after filing of chargesheet now they have been supplied with those details and copies of the phone printouts obtained by the investigating agency. When it is possible in view of the development of the technology and cyber science to ascertain and locate a particular mobile number- sim card, the investigating agency has tried to put curtain on it and has not investigated the plea of alibi by recording statement of number of persons whose mobile numbers have been reflected in the phone printouts taken out as to the the use of mobile of both the petitioners and other co-accused persons and/or prosecutrix Bijal or her sister Vaishali. One of the backbone of the submissions of ld. Counsel Mr. Shah is that just to prove the innocence, they had practically agreed to undergo DNA Finger Print Test and when details of such report are with the investigating agency, then the result recorded by the Forensic Science Experts atleast could have led the investigating agency to carry out further investigation in respect to plea of "alibi" before submitting chargesheet or after submission of chargesheet could have carried out further investigation suo motu after obtaining formal permission from Court in exercise of the powers vested under sec.173(8) of CrPC. According to Mr. A.D. Shah, if details gathered on further investigation by the investigating agency are not supporting the case of the prosecution or it is found that the result of further investigation is not relevant, or it is insufficient to throw a light on either side, then such documents or statements may not be placed before the Court as a part of chargesheet papers. There may not be any supplementary chargesheet even after further investigation if carried out, but the Investigating Officer should not act in an arbitrary manner resulting into unfairness. The Apex Court and the courts of this country have always insisted for clear and transparent investigation and it is, submitted, therefore that the investigation of the crime registered at Shahibagh Police Station being I.CR No.2/2004 be handed over to respondent No.5 CBI, Gandhinagar or to any other independent agency. It should be practically a denovo investigation, is the basic submission advanced by Mr. Shah for the petitioners. 5(i) There is substance in the arguments advanced by ld. PP Mr. Oza that in any case, fresh or denovo investigation can not be granted and should not be granted in such or similar cases as per settled legal position. Such prayers are normally made only to destroy the case of prosecution and to take disadvantage of a minor contradiction if emerge in the statements recorded by other agency during fresh or denovo investigation and this case does not fall in the category wherein fresh or denovo investigation can be ordered. In support of his submissions, ld. PP Mr. Oza has placed reliance on the following decisions:- 1. M.C.Abraham & Others v/s State of Maharashta, (2003)2 SCC 649; 2. Banti @ Guddu v/s State of M.P., (2004)1 SCC 414; (ii) The second point of resistance placed by ld. PP Mr. Oza is that the averments made in the petition that the investigating agency has acted unfairly and there is no element of transparency, should be held to be baseless allegation made by the petitioners because the say of the petitioners as to their presence at the place other than the scene of offence i.e. Hotel Ashoka Palace, Shahibagh, Ahmedabad, was investigated and it was not necessary to record statement of each persons that may be necessary to record statement of each persons that may be friends even as per the say of the petitioners. Statement of Chowkidar of farm-house located at a distance of more than about 15 to 20 kms. from the place of incident has been recorded by the Investigating Officer and the contents of the submissions impliedly covers the stand taken by the accused as to their presence at the place other than the place of offence. Ld. PP Mr. Oza has referred certain part of the statement recorded of Chowkidar of the "farm-house" referred to by the petitioners during investigation and representing their say before the Investigating Officer and other superior officers. Ld. PP Mr. Oza submits that the statements of more than one witnesses of Hotel Ashoka Palace have been recorded and submitted that all the prosecution witnesses and mainly hotel boy has specifically stated that both the petitioners were in one of the rooms where prosecutrix Bijal Joshi was, in the hotel and they were sitting in Sofa in the room when he had been there to serve water to these guests. This evidence, according to the investigating agency was sufficient to rule out the plea of "alibi". Even then if the accused are of the view that they are able to lead better evidence in support of their plea of "alibi", then it is obligatory for them to lead that evidence during trial. Such evidence can be brought on record even during the cross-examination of prosecution witnesses including the Investigating Officer, if need be, and by the witnesses that they may examine as defence witnesses. (iii) The third point of resistance placed by ld. PP Mr. Oza is that the stand/plea of "alibi" was prima facie tested by this Court while dealing with bail application moved before this Court in connection with very crime and the observations of this Court while rejecting the bail application of the petitioners. The order dated 13.07.2004 (Coram : A.L. Dave, J ) should be considered and viewed the same, the present petition should be dismissed observing that the same is moved only to delay the trial and protract the litigation so that the petitioners can take disadvantage of the time spent in conducting the trial. Ld. PP Mr. Oza has pointed out various proceedings initiated by the present petitioners and other co-accused persons and has argued that all these proceedings have been instituted and some of them have seen the test of the order of the Hon'ble Apex Court because the accused including the present petitioners are interested in protraction of trial. According to ld. PP Mr. Oza, this petition also can be dismissed only on account of absence of bonafide. (iv) The fourth point of resistance canvassed by ld. PP Mr. Oza is that the petitioners had filed discharge application before the trial court in the proceedings of Sessions Case No.240/2004, and they had not pressed for the reasoned order though plea of "alibi" was one of the main point/argument in support of their discharge application filed under sec.227 of CrPC. Now, both have accepted to face trial on merits for the offences punishable under Sec.306 etc. of IPC qua the second offence i.e. I.CR No. 23/2004 registered by Naranpura Police Station, and, therefore, the petitioners have lost their right/ legal entitlement to continue with the present petition and it should be held that plea of "alibi" at initial stage has not been pressed and, therefore, they can not press now and it should be observed obviously that they can take-up this plea if the petitioners or any of them desires to canvas that plea after recording of evidence that may be led by the prosecution. The above four main submissions are made by ld. PP Mr. Oza in response to the detailed submissions made by ld. Counsel Mr. Shah on various aspects in accordance with the contents of the petition. 6. Ld. Counsel Mr. Shah has taken this Court through some of the part of the detailed written representation made by the petitioners to Hon'ble The Chief Justice of this Court and President of National Human Rights Commission on 09.04.2004. It is submitted that representation was mainly qua the crime registered by Shahibagh Police Station i.e. I.CR.No.2/2004 and their alleged involvement in the commission of rape on prosecutrix Bijal Joshi. According to ld. PP Mr. Oza, such applications as well as representations should not be given any importance and they should be ignored as irrelevant because they are normally being drafted by the legal experts and with an intention to add complexity and hurdles in smooth investigation in progress. The petitioners, according to ld. PP Mr. Oza, are having strong social background and effective social influence and they belong to a financially well-off family. If they are so desirous to lead evidence in detail in support of their plea of "alibi", they are entitled and at liberty to do it, but by using their social and economic influence, the petitioners can not be indirectly permitted to investigate the defence plea at the costs of the State and prosecuting agency should not be compelled to demolish the evidence that has been collected against the accused by ordering denovo investigation and/or to concentrate investigate on the plea of "alibi" taken by the petitioners. 7. In response to the query raised, ld. counsel appearing for the parties and mainly ld. PP Mr. Oza, have tendered for perusal the details as to the use of mobile phones of accused persons, including the petitioners and the prosecution witnesses obtained during the investigation from different Cellular Service Providing Companies and it would be beneficial to mention some details and contingencies emerging therefrom to appreciate the say of both the sides. (i) Investigating Agency, during the course of investigation has concentrated on use of various telephone numbers including land-line telephone numbers of Hotel Ashoka Palace where the alleged offence of gang rape is committed, but the same has mainly focussed on the use of mobile phones of following persons including some accused and prosecution witnesses. These details have been given by ld. PP Mr. Oza while submitting the zerox copies of the printouts obtained from Cellular Service Providing Companies. These details are of :- (1) Accused Sajal Jain having five telephone numbers; viz. 9868157468 ( in the name of SK Industries Pvt. Ltd., New Delhi provided by MTNL); 35740459 36491334 35854168 9811256991 (2) Accused Sugam @ Monti 9879099994 (3) Accused Vinay Jaiswal 31101792 (4) Dharmendra 3100210 (5) Accused Ashok @ Mandan Jaiswal 9824313333 (Idea) 3111331 (Reliance) (6) Accused Chandan Jaiswal 9824066729 9824074588 (7) P.W.. Vaishali Joshi 9898019689 (8) Prosecutrix Bijal Joshi 8616661 31085810 Underlined number of petitioner Chandan Jaiswal is emerging from the phone printouts supplied, though it is not in the list supplied. (ii) Of course, in the details supplied by ld. PP Mr. Oza, one telephone number is shown against the name of accused Mandan Jaiswal and accused Chandan Jaiswal, but on close scrutiny of the printouts, it emerges that two different telephone numbers were either used by these two or were in their name and it is rightly pointed out by ld. Counsel Mr. Shah that telephone number provided by Idea Cellular Company i.e. 9824313333 is of Ashok Mandan Jaiswal, but it is wrongly shown in the list as phone of accused Chandan Jaiswal. Both these petitioners were having two mobile phones probably. In one of the documents, accused Mandan Jaiswal is shown as holder of two different telephones and prosecuting agency has obtained details as to the use of these mobile telephones. For some telephones, details are obtained for the period from 15/16.12.2003 and/or 20.12.2003. But inn the same way, probably relevant, certain details as to use of telephone numbers of residence of accused Sajal Jain and/or father of accused Sajal Jain and of the hospital where accused Sajal Jain, according to the prosecution under alleged sickness, had kept himself avoiding arrest, as alleged by the prosecution, are not available. In the same way, phone printouts as to the use of telephone numbers either landline or mobile of Dr. Gambhir, are also not found at first sight, from the phone printouts papers supplied to the Court for perusal. One Dr. Gambhir was cited as witness by the prosecution, but now he is named as one of the accused. (iii) Prima facie, it emerges from the record that none of the petitioners were in constant contact telephonically either with Hotel Ashoka Palace or with accused Sajal Jain or prosecutrix Bijal Joshi after 18.00 hours on 31.12.2003 to early morning of 01.01.2004. It is not the say of the prosecution at first place at this stage that any of the telephone numbers shown in the list supplied to the Court by ld. PP Mr. Oza was out of order or was beyond reach i.e. not connectable being out of coverage area and certain long-standing talks or frequency or speed to dial telephone to different numbers or act of constant calling with a particular number or numbers, are emerging as relevant aspects. So, after obtaining printouts, there was scope to interrogate the accused persons and even prosecution witnesses mainly PW Vaishali Joshi and the persons to whom the present petitioners and PW Vaishali Joshi had telephonic conversation during the crucial hours i.e. after 10.30 P.M. on 31.12.2003 & 6.00 A.M. on 01.01.2004. The Court can not ignore the probability that police might have found some strength in the plea of "alibi" pressed into service by one of the accused or both the accused of falsity of it. The accused is not supposed to unfold his defence as per the law of our land, but when accused takes a specific stand from the beginning and opts to place a specific plea of defence, it becomes obligatory on the part of the investigating agency to investigate the stand taken by the accused objectively and thoroughly and to make detailed attempt to falsify the defence and facts gathered if are found relevant, can be placed with report submitted under Sec.173 of CrPC. Slipshod investigation in this regard may either invite criticism or serious prejudice to the prosecution. Therefore, the moot question raised before the Court by the present petitioners is whether the investigating agency should be directed to go into it in details need to be addressed and if answer is in affirmative, whether such investigation, we may term as "further investigation" or "detailed reinvestigation", should be handed over to any other agency. 8. Undisputedly, it has come on record that one right party was arranged on 31st December 2003 at one farm house which is at a reasonably good distance from the hotel Ashoka Palace where the alleged rape is committed. This is a case of gang rape and the investigating agency, prosecuting agency and the Court are supposed to be sensitive when it comes under obligation to appreciate the facts leading to the commission of the crime and none of the parties directly or indirectly be permitted to put to advantageous position on sheer technicality. Procedural laws are very important and accepted proposition of law is that certain things if are required to be done in a particular manner and style, then that should strictly be done accordingly and not in any other manner or method. This adds strength to transparency and the facts can be placed before the Court for adjudication and to find out truth and, therefore only, in all the cases irrespective of gravity or sensitivity, fairness at each stage has been given tremendous importance by the highest Court of the country. Lacunas can be ignored if they are found not very relevant and if it is possible for the Court to say that it does not adversely affect the case placed by the prosecution or defence and the Courts are not supposed to pay heed to procedural irregularity not resulting into serious prejudice, but such lacuna should not be permitted to percolate at initial stage of investigation or trial which may ultimately result into serious prejudice to either side. This is a case wherein an attempt is made by the petitioners saying that there is important lacuna in the investigation and this lacuna has taken a disastrous shape on account of unfair attitude or because of any other reason, may be negligency or inefficiency on the part of Investigating Officer, and but for this lacuna, they are languishing in jail since very long period of about for more than 15 months and they have been asked to face the trial of a serious offence of gang rape on a festive night of 31.12.2003 and/or early hours of 01.01.2004 i.e. New Year Day. Ld. Counsel Mr. Shah has rightly submitted that when the petitioners are in prison as an under-trial, they are not at all interested in protraction of trial. On earlier occasion, when resistance before undergoing DNA Finger Print Test was placed before this Court with all anxiety to co-operate with the test, but insistence of the petitioners was that it