IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION No. 2145 of 2010
For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH
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 ?
POOJA ABHISHEK GOYAL (NEE POOJA ASHOK GUPTA) – Applicant(s)
Versus
STATE OF GUJARAT & 5 – Respondent(s)
Appearance :
MR PM THAKKAR, SR.ADV. with MR JAL SOLI UNWALA for Applicant(s) : 1,MR BOMI H SETHNA for Applicant(s) : 1,
MR M.R. MENGDEY, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1,
MR ABHISHEK ASHWINI GOYAL & ORS. PARTIES-IN-PERSON : 2 – 6.
CORAM :HONOURABLE MR.JUSTICE M.R. SHAH
Date : 13/12/2010
ORAL JUDGMENT
[1.0] By way of this petition under Article 227 of the Constitution of India, petitioner – original complainant has prayed for an appropriate order quashing and setting aside the impugned order dated 20/10/2010 passed by the learned 3rd Additional Sessions Judge, Ahmedabad (Rural) passed in Criminal Revision Application No.70/2010, by which the learned Revisional Court has partly allowed the said revision application filed by the respondent Nos.2 to 6 herein – original accused and quashing and setting aside that portion/part of the order dated 07/08/2010 passed by the learned 7th Additional Senior Civil Judge, Senior Division and JMFC, Ahmedabad (Rural), Ahmedabad below Exh.55 in Criminal Case No.11331/2008, by which allowing the said application below Exh.55 submitted by the petitioner – original complainant for further investigation by the concerned Police Officer, the learned Magistrate directed to further investigate with respect to the stridhan and palmtop and that too by specifically naming the officer i.e. Assistant Police Commissioner, Ahmedabad.
[2.0] Facts leading to the present Special Criminal Application in nut-shell are as under:
[2.1] Petitioner is wife of respondent No.2 herein and respondent Nos.3 to 6 are the family members of respondent No.2 – husband i.e. father-in-law, mother-in-law and sisters-in-law of the petitioner – original complainant – wife. It appears that marriage between petitioner and respondent No.2 was solemnized at Ahmedabad on 22/11/2007. That respondent No.2 has done his M.Tech. from IIT, Delhi in Bio Technology and has done research in computer science from USA and was serving with E-Infochips Pvt. Limited. It is the case on behalf of the respondent that because of the criminal proceedings initiated by the petitioner against respondent No.2 and his family members, he was compelled to leave the job at Bangalore. It appears that soon after the marriage, petitioner and respondent No.2 stayed together at the house of the in-laws of respondent No.2 and thereafter they went for honeymoon to Bali and just on returning there was a dispute between the petitioner and respondent No.2 and straightway petitioner went to her parental home. It appears that thereafter the petitioner had lodged one FIR before the Satellite Police Station against respondent Nos.2 to 6 herein for the offences punishable under Sections 498A, 406, 34 and 114 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act, which was registered as C.R. No.I-274/2008. It appears that after the completion of investigation, respondent Nos.2 to 6 are charge-sheeted for the offences punishable under Sections 498A, 406 and 114 of the IPC. It appears that thereafter at the time when the learned Chief Judicial Magistrate was to frame the charge against respondent Nos.2 to 6 – accused, petitioner – original complainant submitted the application before the learned Chief Judicial Magistrate, Ahmedabad (Rural) below Exh.8 for an appropriate order directing the investigating officer of the Satellite Police Station to further investigate the case insofar as and with respect to the stridhan and the palmtop communicator by submitting that though in the complaint there was a specific case that stridhan is with respondent No.2 and his family members, no efforts were made by the investigating officer to recover the stridhan. It was submitted that not only that but even the house of respondent No.2 was not searched by the police to find out the stridhan and they were not even called upon to produce stridhan. It was further submitted that even petitioner was also not called by the concerned investigating officer to produce the list of particulars of the stridhan. It was also further submitted that as specific allegations against respondent No.2 with respect to misuse of palmtop were made and therefore, to prove the charge, the concerned investigating officer was required to recover the palmtop, however, no efforts were made by the concerned investigating officer to seize/recover the palmtop from respondent No.2. Therefore, it was requested to pass an appropriate order for further investigation on the aforesaid aspects and specifically with respect to stridhan and palmtop. That the learned Chief Judicial Magistrate, Ahmedabad (Rural) by order dated 12/03/2009 partly allowed the said application directing the investigating officer of the Satellite Police Station to further investigate into the case insofar as and with respect to stridhan, particulars of which were given in the statement of the complainant dated 20/03/2008 and also with respect to the palmtop communicator, report to be submitted within 30 days. It appears that thereafter the investigating officer of the Satellite Police Station conducted further investigation and respondent No.2 also produced certain ornaments before the concerned police station and even the complainant and her family members were called at the police station, however, the complainant and her family members refused to take those ornaments which were produced by submitting that they are not the complete and all the ornaments/stridhan. It appears that even further investigation was also carried out by the investigating officer of the Satellite Police Station with respect to palmtop and necessary inquiry was also made from the Assistant Commissioner (Customs) and Check-post, SVPI Airport, Ahmedabad City and it was found that no palmtop was carried by respondent No.2 while going to Bali and therefore, the concerned investigating officer was of the opinion that nothing further is required to be done with respect to the palmtop. It appears that thereafter on the basis of the aforesaid further investigation, the police inspector, Satellite Police Station submitted the report to the learned Chief Judicial Magistrate pursuant to the order passed by the learned CJM for further investigation under Section 173(8) of the Code of Criminal Procedure. It appears that in the meantime the petitioner – original complainant submitted the application below Exh.47 requesting the learned CJM to call for, from investigating officer, all statements, documents, communications and/or processes carried out in compliance to the order of further investigation dated 12/03/2009 in respect to which reports dated 13/04/2009, 08/05/2009, further report dated 08/05/2009, additional report dated 08/05/2009, dated 23/05/2009, 16/06/2009, 30/06/2009 and lastly dated 17/09/2009 have been tendered before the Court. It appears that the learned Magistrate by order dated 30/01/2010 dismissed the said application below Exh.47 by observing that considering the report submitted by the concerned investigating officer under Section 173(8) of CrPC, no further order is required to be passed on the aforesaid. It appears that the matter does not end there. That thereafter the petitioner – original complainant submitted the application Exh.55 before the learned Magistrate for an appropriate order and to direct investigation under Section 173(8) of the the Code of Criminal Procedure, 1973 with a special direction that the same by conducted under the direct supervision of an officer not below the rank of Assistant Commissioner of Police of Zone, within whose jurisdiction the Satellite Police Station falls. with further direction to submit the report to the Court within the time provided and permitted by the Court. While submitting the said application, the same grievance was reiterated which was made earlier while submitting the application Exh.8 as well as Exh.47 and submitting that the investigating officer has failed to recover the stridhan and the palmtop and no efforts were made by the investigating officer to recover the stridhan, particulars of which were given alongwith the statement of the complainant dated 20/03/2008 and the palmtop. That the learned Magistrate by order dated 07/08/2010 allowed the said application Exh.55 directing the Assistant Commissioner of Police of the Zone under which the Satellite Police Station falls to hold further investigation with respect to the stridhan and palmtop and to submit the report within 30 days. Being aggrieved and dissatisfied with the order passed by the learned Magistrate dated 07/08/2010 below Exh.55, respondent Nos.2 to 6 herein – orignial revisionist preferred Revision Application before the learned Sessions Court, Ahmedabad (Rural), Ahmedabad and the learned 3rd Additional Sessions Judge, Ahmedabad (Rural) by impugned judgment and order dated 20/10/2010 has partly allowed the said revision application by quashing and setting aside that part of the order passed by the learned trial Court below Exh.55 by which there was a specific direction for further investigation with respect to the stridhan and palmtop and that too by naming specific officer i.e. Assistant Commissioner of Police of the Zone under which the Satellite Police Station falls. However, maintained the order with respect to the further investigation by observing and holding that learned Magistrate was not justified in directing the further investigation on a particular aspect and that too by a particular officer. Learned Revisional Court has held that the aforesaid is not permissible. Being aggrieved and dissatisfied with the impugned order passed by the learned Revisional Court dated 20/10/2010 passed in Revision Application No.70/2010, petitioner – original complainant has preferred the present Special Criminal Application under Article 227 of the Constitution of India.
[3.0] Shri P.M. Thakkar, learned Senior Advocate appearing on behalf of the petitioner has at the outset submitted that petitioner is not challenging that part of the order passed by the learned Revisional Court by which the direction is issued by the learned trial Court to conduct and hold further investigation by a particular officer i.e. Assistant Commissioner of Police of the zone under which Satellite Police Station falls has been set aside by the Revisional Court. However, he has submitted that the learned Revisional Court has materially erred in quashing and setting aside that part of the order passed by the trial Court by which a further investigation was ordered with respect to stridhan and the palmtop. It is submitted by Shri Thakkar, learned Senior Advocate appearing on behalf of the petitioner – original complainant that despite the necessary averments and allegations in the complaint with respect to stridhan and palmtop, the same was not recovered by the investigating officer and that too despite the order passed by the trial Court below Exh.8 and from the report submitted by the concerned investigating officer, it was found that the accused are not cooperating the investigating officer and therefore, the trial Court was justified in ordering further investigation with respect to the stridhan and palmtop. It is submitted that therefore as such the learned trial Court has not committed any error in ordering further investigation with respect to the stridhan and palmtop.
[3.1] Shri Thakkar, learned Senior Advocate appearing on behalf of the petitioner has taken the Court to the report dated 28/06/2010 submitted by Shri H.B. Jamod, Police Inspector of Satellite Police Station made to the learned Magistrate in which it is specifically observed by the concerned investigating officer that the accused are not cooperating the investigating officer in further investigation with respect to the stridhan ornaments. Shri Thakkar, learned Senior Advocate has also drawn the attention of the Court to the various orders passed by this Court earlier, arising out of the maintenance proceedings, with respect to the conduct of respondent No.2 and his family members. It is submitted that even respondent No.2 was not disclosing his status of employment and related details and even the order passed by this Court on the aforesaid aspect was not complied with. It is submitted that therefore, when the conduct and the attitude of the accused is absolutely non-cooperative, during the investigation, the learned Magistrate was justified in passing the order for further investigation with respect to stridhan and the palmtop.
[3.2] Shri Thakkar, learned Senior Advocate appearing on behalf of the petitioner has further submitted that as it was alleged by the petitioner and the learned Magistrate was satisfied that the investigating officer of the Satellite Police Station has failed to recover the stridhan and palmtop despite specific averments and allegations in the complaint by the petitioner, which necessitated the learned Magistrate to pass an order for further investigation under Section 173(8) of the the Code of Criminal Procedure directing the police for further investigation with respect to the stridhan and palmtop, which was not required to be interfered by the Revisional Court in exercise of revisional jurisdiction.
[3.3] Shri Thakkar, learned Senior Advocate appearing on behalf of the petitioner has also submitted that as such the accused persons have no say with respect to the investigation and/or further investigation and therefore, the learned Revisional court has materially erred in entertaining the said revision application at the instance of the said accused. Therefore, it is requested to allow the present Special Criminal Application quashing and setting aside the order passed by the Revisional Court insofar as setting aside that part of the order by which the learned trial Court had ordered further investigation with respect to stridhan and palmtop.
[4.0] Petition is opposed by respondent Nos.2 to 6 – original accused. It is submitted that as such they are tired with the litigation and infact due to the litigation, respondent No.2, husband is compelled to leave his job at Bangalore as it was not possible for him and his family members to contest various litigations initiated by the petitioner. It is submitted that as such the application of the petitioner for further investigation with respect to stridhan and palmtop is nothing but abuse of process of law and it is only with a view to harass respondent Nos.2, husband and his family members. It is submitted that under the guise of the investigation and further investigation, infact there was unnecessary harassment to respondent No.2 and his family members for which they were required to approach the National Human Right Commission; State Human Right Commission and the Hon’ble The Chief Minister and they were required to intervene so that there is no harassment to respondent No.2 and his family members. He has relied upon the correspondence by the aforesaid authorities with a view to demonstrate that under the guise of investigation and further investigation with respect to stridhan and palmtop, there is unnecessary harassment to them.
[4.1] Respondent No.2 – husband who is appearing as party in person has further submitted that as such the investigation and the further investigation was carried out with respect to stridhan and palmtop also as can be seen from the earlier report by the police inspector, Satellite Police Station, Ahmedabad City, Shri M.H. Vasani dated 18/12/2009, which was sent to the learned Chief Judicial Magistrate, Ahmedabad (Rural). It is submitted that as such the particulars of the stridhan given by the petitioner – original complainant alongwith her statement dated 20/03/2008, is absolutely vague and no description and the particulars with respect to any ornaments and/or jewelry has been given by the petitioner. It is submitted that as such no list was maintained and/or prepared by the parties, no list of jewelry and stridhan was maintained by the parties as required under the provisions of the Dowry Prohibition (Maintenance of list of presents to the bride and bride groom) Act. It is submitted that whatever the ornaments and stridhan was with the respondents, the same were produced before the police station as mentioned in the report of the Police Inspector of Satellite Police Station dated 18/12/2009, however, as reported by the concerned police inspector of Satellite Police Station, the petitioner and his family members refused to take that by submitting that the full and entire stridhan and jewelry has not been produced. It is submitted that in absence of any full particulars and/or the list mentioned in the aforesaid provision with respect to stridhan, jewelry, presents etc., no investigation can be directed with respect to stridhan as the same would be unnecessary harassment and for the stridhan, particulars of which are not known and/or disclosed with full details.
[4.2] Respondent No.2 – husband, party-in-person has as such relied upon various decisions of the Hon’ble Supreme Court as well as this Court, more particularly, the decision of the Hon’ble Supreme Court in the case of Reeta Nag v. State of West Bengal & Ors. reported in (2009) 13 SCR 276; the decision of the Hon’ble Supreme Court in the case of Kishan Lal v. Dharmendra Bafna & Anr. reported in (2009) 7 SCC 685 as well as the unreported decision of the learned Single Judge of this Court in the case of Shivubha Chanubha Chudasama v. State of Gujarat & Ors. (Criminal Revision Application No.76/2008) in support of his submission that as such the learned Magistrate has no jurisdiction to pass the order for further investigation under section 173(8) of the Code of Criminal Procedure at the request of and/or application given by the complainant and/or informant and it is ultimately and only for the concerned investigating officer and/or investigating agency to request for permitting them to hold further investigation. Relying upon above decisions, it is submitted that even the order passed by the learned Magistrate for further investigation at the instance of the petitioner – original complainant is not tenable at law and the same is contrary to Section 173(8) of the Code of Criminal Procedure.
[4.3] It is further submitted by respondent No.2 – husband – party in person and respondent Nos.5 & 6 that even investigation was carried out by the concerned investigating officer of Satellite Police Station with respect to palmtop also though there was no necessity for the same and on inquiry from the customs authority it was revealed that the palmtop was not taken by respondent No.2 at the time when he went along with the petitioner for honeymoon to Bali and therefore, the concerned investigating officer was of the opinion that no further inquiry /investigation is to be carried out with respect to palmtop and even the same was reported to the concerned learned Magistrate by the police inspector of Satellite Police Station in his report dated 18/12/2009.
[4.4] Now, so far as the reliance placed upon the report submitted by the police inspector, Satellite Police Station, Shri H.B. Jamod dated 28/06/2010, in which some allegations are made against respondent No.2 and his family members with respect to non-cooperation, it is submitted by respondent Nos.2 to 6 that the said report cannot be relied upon as the said report is bias report given by the concerned police inspector, Shri Jamod against whom various complaints were made by respondent No.2 and his family members with respect to harassment and torture by making complaints to the National Human Right Commission; State Human Right Commission and the Hon’ble The Chief Minister of Gujarat. It is submitted that only with a view to harass respondent No.2 and his family members and with malafide intentions, such a report is submitted by the said police inspector, which cannot be relied upon.
[4.5] By making above submissions and relying upon above decisions, it is requested to dismiss the present Special Criminal Application by further submitting that various applications given by he petitioner for reinvestigation and/or further investigation is abuse of process of Court and the Court proceedings and harassment to respondent No.2 and his family members.
[5.0] Heard Shri Thakkar, learned Senior Advocate with Shri Unwala, learned advocate appearing on behalf of the petitioner – original complainant and Shri Mengdey, learned Additional Public Prosecutor appearing for the State and respondent Nos.2, 5 and 6 i.e. husband and sisters-in-law of the petitioner in person.
[5.1] From the facts narrated herein above, it appears that the controversy and issue in the present Special Criminal Application and the proceedings arise out of the application submitted by the petitioner – original complainant for further investigation with respect to stridhan and palmtop under Section 173(8) of the Code of Criminal Procedure. It is to be noted that the charge-sheet has already been filed against respondent Nos.2 to 6 by the police inspector in-charge of the concerned Satellite Police Station against respondent Nos.2 to 6 herein – accused for the offences punishable under Sections 498A, 406 and 114 of the IPC. It was the petitioner – original complainant who submitted the application initially vide Exh.8 for reinvestigation and/or further investigation under Section 173(8) of the the Code of Criminal Procedure only with respect to stridhan and palmtop alleging inter-alia that no efforts have been made by the investigating officer to recover the stridhan and palmtop though there were specific allegations made in the complaint as well as list of stridhan submitted by the petitioner – complainant alongwith her statement dated 20/03/2008. That the learned Chief Judicial Magistrate by order dated 12/03/2009 partly allowed the said application and directed the investigating officer of Satellite Police Station to hold further investigation under Section 173(8) of the Code of Criminal Procedure with respect to stridhan, particulars of which are given alongwith the statement of the petitioner dated 20/03/2008 and with respect to palmtop communicator. It appears from the report dated 18/12/2009 submitted by the police inspector, Satellite Police Station, Shri M.H. Vasani that further investigation was carried out by the concerned police inspector of Satellite Police Station even with respect to stridhan and palmtop and it appears that some ornaments were produced by respondent No.2 and his family members, however, the petitioner and her family members were not satisfied and according to them as all the ornaments/stridhan were not produced, they did not accept the same and they left the police station. Report made under Section 173(8) CrPC to the concerned Magistrate on further investigation, dated 18/12/2009 is self-explanatory. From the aforesaid, it cannot be said that no investigation was carried out by the investigating officer of the Satellite Police Station with respect to stridhan and palmtop and no efforts were made to recover the same.
[5.2] It appears that still the petitioner – complainant was not satisfied and an application Exh.47 was given by the petitioner – complainant before the learned Magistrate directing the concerned investigating officer to produce various reports etc. which came to be rejected by the learned Magistrate vide order dated 30/01/2010 considering the report made by the police inspector of Satellite Police Station dated 18/12/2009 made under Section 173(8) of the Code of Criminal Procedure. It appears that still the petitioner – original complainant was not satisfied and therefore, she submitted another application Exh.55 requesting the learned Magistrate for further investigation and/or reinvestigation under Section 173(8) of CrPC and to direct to hold further investigation under direct supervision of an officer not below the rank of Assistant Commissioner of Police of Zone within which jurisdiction the investigation of Satellite Police Station falls. It is to be noted that despite the report submitted by the police inspector of Satellite Police Station dated 18/12/2009 made to the learned Magistrate under Section 173(8) of CrPC after further investigation, it was contended and alleged by the petitioner – complainant that no efforts have been made by the investigating officer of the Satellite Police Station to recover stridhan and palmtop and therefore, it was requested for further investigation and reinvestigation. The learned Magistrate accepted the same and directed further investigation by order dated 07/08/2010 passed below Exh.55 directing for further investigation by the Assistant Commissioner of Police of the zone under whose jurisdiction the Satellite Police Station falls and directed him to conduct further investigation with respect to stridhan and palmtop and further directed to submit the report within 30 days. The learned Magistrate also passed an order directing the investigating officer – Assistant Commissioner of Police to see to it that there is no breach of human rights of accused. Being aggrieved and dissatisfied with the aforesaid order, respondent Nos.2 to 6 preferred revision application before the learned Sessions Court, Ahmedabad (Rural) being Criminal Revision Application No.70/2010 and the learned Revisional Court by impugned order dated 20/10/2010 has partly allowed the said revision application by quashing and setting aside that part of the order passed by the learned trial Court dated 07/08/2010 passed below Exh.55, by which the direction was issued for further investigation by a particular officer i.e. Assistant Commissioner of Police and that too on a particular aspect i.e. stridhan and palmtop and confirmed the order with respect to further investigation. Considering the order passed by the learned Revisional Court, it appears that learned Revisional Court has set aside the aforesaid direction by observing and holding that learned Magistrate had no jurisdiction and authority to pass order under section 173(8) of the Code of Criminal Procedure and for further investigation by a particular officer and on a particular aspect. The learned Revisional Court has observed that passing of order for further investigation on a particular aspect by the learned Magistrate would tantamount to interfering with the investigation by the investigating officer, which is not permissible. From the aforesaid, it cannot be said that the Revisional Court has committed any error in quashing and setting aside that part of the order passed by the learned trial Court by which a specific direction was issued for further investigation on a particular aspect i.e. stridhan and palmtop and that too by a particular officer. As stated herein above, learned counsel appearing on behalf of the petitioner has fairly conceded that Revisional Court has not committed any error in quashing and setting aside that part of the order passed by the learned Magistrate by which a further investigation was ordered to be conducted by a particular officer i.e. Assistant Commissioner of Police. Shri Thakkar, learned Senior Advocate appearing on behalf of the petitioner has fairly submitted that as such petitioner never requested for further investigation to be conducted by a particular officer i.e. Assistant Commissioner of Police and what was requested by the petitioner was to see that further investigation is supervised by the officer not below the rank of Assistant Commissioner of Police. From the aforesaid, it appears that when the learned Revisional Court has held and observed that it is not within the jurisdiction of the Magistrate to direct further investigation on a particular aspect as it is the prerogative of the investigating officer to conduct the investigation and to pass such an order would tantamount to interfere with the investigation and by observing that when the Revisional Court has set aside that part of the order passed by the learned Magistrate by which it was directed for further investigation on a particular aspect i.e. stridhan and palmtop, it cannot be said that the learned Revisional Court has committed any error and/or illegality which calls for interference of this Court in exercise of powers under Article 227 of the Constitution of India.
[5.3] Even on merits also, learned Magistrate was not justified in ordering further investigation with respect to stridhan. Respondent No.2 is justified in making the grievance that the application of the petitioner for further investigation and/or reinvestigation with respect to stridhan is nothing but harassment to respondent No.2 and his family members. It is to be noted that no particulars and specification have been given with respect to the ornaments/stridhan by submitting the list alongwith her statement dated 20/03/2008 for which it was requested for further investigation. No description is given with respect to any ornaments and just vague description and/or particulars are given with respect to stridhan/ornaments/jewelry. No list is produced on record with respect to stridhan with full particulars as required to be maintained under the provisions of Dowry Prohibition (Maintenance of list of presents to the bride and bride groom) Act. Apart from that, from the reports submitted by the police inspector, Satellite Police Station dated 18/12/2009 submitted before the learned Magistrate after further investigation under Section 173(8) of the Code of Criminal Procedure, it cannot be said that there was no investigation at all by the concerned investigating officer with respect to stridhan and palmtop. It is to be noted that earlier, after the charge-sheet was filed, an application was given below Exh.8 for further investigation, the learned Judge accepted the same, passed an order for further investigation; the concerned investigating officer submitted the report under Section 173(8) of CrPC after further investigation on date 18/12/2009 and thereafter, again and again, applications are given by the petitioner – original complainant for further investigation. There cannot be further investigation after further investigation. Under the circumstances also, the learned Magistrate was not justified in passing the order for further investigation on stridhan and palmtop.
[5.4] As held and observed by the Hon’ble Supreme Court in the case of Reeta Nag (Supra), Court/Magistrate has no jurisdiction and/or Magistrate cannot suo motu direct further investigation under Section 173(8) of CrPC or direct reinvestigation into the case on account of bar of Section 157 of CrPC. Considering the decision of the Hon’ble Supreme Court in the case of Reeta Nag (Supra) as well as Kishan Lal (Supra), on interpretation of Section 173(8) of the Code of Criminal Procedure, the Hon’ble Supreme Court has observed and held that it is for the concerned investigating officer and/or agency to request for further investigation under Section 173(8) of CrPC. In the present case, as such this Court is not required to further consider the same whether the learned Magistrate was justified in directing further investigation on an application submitted by the complainant as such earlier order passed by the learned Chief Judicial Magistrate passed below Exh.8, by which the learned CJM ordered further investigation on the application submitted by the petitioner, attained finality and even the impugned order passed by the learned Revisional Court confirming the order passed by the learned trial Court below Exh.55 for further investigation has not been challenged by respondent Nos.2 to 6 and therefore, so far as they are concerned, the order passed by the Revisional Court confirming the order passed by the learned trial Court below Exh.55 application for further investigation has attained finality, therefore, this Court is not further considering the aforesaid aspect and the said question is left open.
[5.5] Now, so far as submission on behalf of respondent Nos.2 to 6 that the application has been submitted by the petitioner – original complainant for further investigation with respect to stridhan and palmtop only with a view to harass respondent No.2 and his family members is concerned, there seems to be some substance. One after another applications have been submitted by the petitioner for investigation, further investigation and reinvestigation and a request is made for further investigation with respect to stridhan, the particulars of which are given by the petitioner – original complainant alongwith her statement dated 20/03/2008. However, considering the said list of stridhan, it appears that no full particulars, description of any stridhan/ornaments/jewelry has been given and just vague particulars are given such as (i) earrings studded with four diamonds, (ii) a gold coin and (iii) three gold chains given to them as presents on day prior to wedding etc.. What appears from the list is disputed by respondent Nos.2 to 6 and from the report dated 18/12/2009 submitted by the police inspector, Satellite Police Station submitted to the concerned Magistrate under Section 173(8) of the Code of Criminal Procedure, it appears that respondent Nos.2 to 6 produced some ornaments which according to them were as stridhan. However, the petitioner and her family members did not accept the same, as all the stridhan according to them were not produced. Thus, the petitioner wants further investigation with respect to stridhan, particulars of which are very vague.
[6.0] In any case the learned Revisional Court has infact confirmed the order passed by the learned Magistrate passed below Exh.55 dated 07/08/2010 in Criminal Case No.11331/2008, insofar as ordering further investigation is concerned and the learned Revisional Court has set aside that part of the order passed by the learned Magistrate by which the learned Magistrate directed to conduct further investigation by a particular officer i.e. Assistant Commissioner of Police and that too on a particular aspect i.e. stridhan and palmtop. It is rightly observed by the learned Revisional Court relying upon the decision of the Hon’ble Supreme Court in the case of Hemant v. CBI reported in (2001) Cri.L.J. (SC) 4190 and the decision of this Court in Criminal Revision Application No.738/2008 that the Magistrate should not direct that a particular officer or even an officer of particular rank should conduct such further investigation. The learned Revisional Court has also rightly observed and held that even learned Magistrate also cannot order further investigation on a particular aspect on which further investigation should be conducted and should be left to the investigating agency/officer. In any case, from the impugned order passed by the learned Revisional Court, it appears that the learned Revisional Court has permitted further investigation by the concerned officer in-charge of the Satellite Police Station which can include everything and therefore, no prejudice is caused to the petitioner and therefore, the impugned order passed by the learned 3rd Additional Sessions Judge, Ahmedabad (Rural) dated 20/10/2010 passed in Criminal Revision Application No.70/2010 is not required to be interfered with by this Court in exercise of powers under Article 227 of the Constitution of India.
[7.0] In view of the above and for the reasons stated above, present Special Criminal Application deserves to be dismissed and is, accordingly, dismissed. Notice discharged.
(M.R. Shah, J.)
