Narandash Leelaram Aasvani vs State Of Gujarat & 4

Rule returnable forthwith. Ms. Monali Bhatt, learned APP waives service of notice of rule for and on behalf of the respondent -State.

The petitioner herein is the original victim- father of the deceased, who has approached this Court, being aggrieved by the order of Sessions Court rendered in Sessions Case No. 8 of 2015 rejecting the application of the petitioner for further investigation. The order came to be passed on an application made by the petitioner below Exh. 41 on 26.2.2001, whereby, the Court chose not to entertain the request for further investigation made by the present petitioner.

Learned advocate Mr. Chintan Popat appearing for the petitioner has emphasized that it was not only the request for further investigation under Section 173(8) of the Code of Criminal Procedure ("the Code" for short) made before the Sessions Court, but keeping in mind the ratio laid down in case of Ghanshyambhai Madhavlal Patel Vs. State of Gujarat reported in 2015 (2) GLH 732, a request was also made for recording the statement of those witnesses whose evidence may be considered by the trial Court at the later date. He has further submitted that the order impugned requires interference as his right is closed permanently.

The petitioner is not insisting on further investigation under Section 173(8) of the Code. It is only for the limited purpose of recording the statement of witnesses, this section is pressed into service. He has also said that along with the application, the petitioner has also insisted for interview videographed and recorded in a CD of the first informant on the TV channel. He has sought to rely upon the aforementioned judgment and urged that interview was videographed and recorded in a C.D,, wherein the first informant had Page 2 of 10 HC-NIC Page 2 of 10 Created On Tue May 10 00:32:41 IST 2016 R/SCR.A/1782/2016 ORDER explained the details as to how the incident occurred. Therefore, it would be vital to get that C.D. for just decision of the case.

Upon instructions of Mr. V.N. Singarakhiya, PSI of Kamlabaugh Police Station, Porbandar, learned APP submits that the trial is on the verge of completion and at this stage, the petitioner is desirous of further investigation. He has further urged that the statement of the complainant has been recorded under Section 164 of the Code. She has chosen not to support the case of the prosecution. It is although admitted on instructions that the interview of the complainant which was videographed and recorded in a C.D. is not collected by the concerned officer.

Having heard both the sides, it could be noticed that the Court below has not entertained his request made for further investigation, relying upon decision of the Apex Court rendered in case of Randhir Singh Rana Vs. The State of Delhi reported in (1997) 1 SCC 361 and also considering the case of Reeta Nag V/s. State of West Bengal, 2009 (9) SCC 129 wherein, the Court has held that application for further investigation for de facto trial shall not maintainable. The Trial Court has Page 3 of 10 HC-NIC Page 3 of 10 Created On Tue May 10 00:32:41 IST 2016 R/SCR.A/1782/2016 ORDER relied upon the observations made therein to state that the complainant's remedy lies in invoking inherent powers of the High Court vested under Section 482 of the Code by filing a writ petition under Article 226 of the Constitution of India. The Court before, therefore, rejected his request. If one looks at the decision of this Court rendered in case of Ghanshyambhai Madhavlal Patel Vs. State of Gujarat (Supra), the Court has examined the power to summon material witnesses, or examine person present during the trial or examine the person during the trial The first informant, who had witnessed the entire accident, where he had disclosed the name of the person who was driving BMW Car, his address and the CCTV footage C.D before the police and the entire accident got recorded in a CCTV camera. The first informant identified respondent No.2 -accused as the driver of BMW car during identification parade. However, during the trial, the first informant failed to support the case of prosecution and ultimately was declared a "hostile witness". In the midst of the trial, father of one of the deceased filed two applications. Petitioner prayed to summon two witnesses who were employees of a local TV Page 4 of 10 HC-NIC Page 4 of 10 Created On Tue May 10 00:32:41 IST 2016 R/SCR.A/1782/2016 ORDER channel along with the application. Petitioner also produced a copy of the C.D. of the interview of the first informant. Both the applications were rejected by the Trial Court on the ground that father had filed applications under Section 311 of the Code and Father therefore had no locus standi in the case. This Court allowed the application on the ground of maintainability and also on merits. Interview was videographed and recorded in a C.D.wherein the first informant explained in detail as to how the accident occurred and in what manner the accused ran away from the spot of accident.

For application of the provisions of Section 311 of Cr.PC, it is to be considered whether the evidence of the concerned witness is essential for a just decision in a case. The Court may exercise its discretionary power in any of the three ways mentioned in the first part of the section ie., (1) summon any person as a witness; (2) examine as a witness any person present in Court, though not summoned and (3) recall and re-examine a witness who has already been examined.

It would be apt to reproduce some of the findings and observations of the Court which reads Page 5 of 10 HC-NIC Page 5 of 10 Created On Tue May 10 00:32:41 IST 2016 R/SCR.A/1782/2016 ORDER as under :-

"53. I could have allowed the applications directly without asking the investigating officer to undertake a limited further investigation but probably that might cause some prejudice to the accused because it would not be possible for the defence to ascertain what exactly the two witnesses named in the application would say. If the High Court reaches to the conclusion that the Investigating Officer has failed to collect the material evidence, the High Court is entitled to invoke its extra­ordinary jurisdiction under Article 226 of the Constitution, and a direction can be issued for further investigation. Even after filing of the charge­sheet and taking into cognizance of the offence by the Magistrate, the Police is not precluded from conducting further investigation, if fresh facts come to the list which were not noticed at the time of investigation, or by mistake the same had been left out to be collected.

54. The object and reason for incorporating Section 173(8) Cr. P.C. is reflected in the 41st report of the Law Commission. Relevant portion is as follows :­ "A report under Section 173 is normally the end of the investigation. Sometimes, however, the police officer after submitting the report under Section 173 comes upon evidence bearing on the guilt or innocence of the accused. We should have thought that the police officer can collect that evidence and send it to the Magistrate concerned. It appears, however, that courts have sometimes taken the narrow view that once a final report under Section 173 has been sent, the police cannot touch the case again and cannot reopen the investigation. This view places a hindrance in the way of the investigating agency, which can be unfair to the prosecution and, for that matter, even to the accused. It should be made clear in Section 173 that the competent police officer can examine such evidence and send a report to the Magistrate. Copies concerning the fresh material must of course be furnished to the accused."

HC-NIC Page 6 of 10 Created On Tue May 10 00:32:41 IST 2016 R/SCR.A/1782/2016 ORDER

55. The scope of further investigation by police under Section 173 (8), Cr. P.C. was considered by the Supreme Court in the decision reported in AIR 1979 SC 1791 : (1979 Cri LJ 1346) (Ram Lal Narang v. State (Delhi Admn.) and (Om. Prakash Narang v. State (Delhi Admn.) where it has been laid down :­ "As observed by us earlier, there was no provision in the Code of Criminal Procedure, 1898 which, expressly or by necessary implication, barred the right of the police to further investigate after cognizance of the case had been taken by the Magistrate. Neither Section 173 nor Section 190 lead us to hold that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permitted repeated investigations on discovery of fresh facts. In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further investigation, the police could express their regard and respect for the Court by seeking its formal permission to make further investigation."

However, in paragraph 21 a guideline has been indicated for the investigating officer who intend to exercise power under Section 173 (8), Cr. P.C. It reads as follows :­ "Anyone acquainted with the day­to­day working of the criminal courts will be alive to the practical necessity of the police possessing the power to make further investigation and submit a supplemental report. It is in the interests of both the prosecution and the defence that the police should have such power. It is easy to visualise a case where fresh material may come to light which would implicate persons not previously accused or absolve persons already accused. When it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, is it not the duty of that agency to investigate the genuineness of the plea of alibi and submit a report to the Magistrate ? After all the investigating agency has greater resources at its command than a private individual. Similarly, where the involvement of persons who are not already accused comes to the notice of the investigating agency, the investigating agency cannot Page 7 of 10 HC-NIC Page 7 of 10 Created On Tue May 10 00:32:41 IST 2016 R/SCR.A/1782/2016 ORDER keep quiet and refuse to investigate the fresh information. It is their duty to investigate and submit a report to the Magistrate upon the involvement of the other person. In either case, it is for the Magistrate to decide upon his future course of action depending upon the stage at which the case is before him. If he has already taken cognizance of the offence, but has not proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused, in a single enquiry or trial. If the case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as a separate case. What action a Magistrate is to take in accordance with the provisions of the Code of Criminal Procedure in such situations is a matter best left to the discretion of the Magistrate. The criticism that is further investigation by the police would trench upon the proceedings before the Court is really not of very great substance, since whatever the police may do, the final discretion in regard to further action is with the Magistrate. That the final word is with the Magistrate is sufficient safeguard against any excessive use of abuse of the power of the police to make further investigation. We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a Court and investigate every fresh fact that comes to light as if no cognizance had been taken by the Court of any offence. We think that in the interests of the independence of the Magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and instructions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the Court and seek formal permission to make further investigation when fresh facts come to light."

56. The question of prejudice could be taken care of by adopting the appropriate procedure namely by directing the investigating officer to record under section 173(8) of the code, the statements of the two witnesses, namely, Shri Dilipbhai and (2) Shri Padmakantbhai Rameshbhai Trivedi having their place of work at 9th Floor, Sahjanand Complex, Opp: Swami Narayan Temple, Shahibaug, Ahmedabad. The Investigating Officer shall also collect the C.D and prepare a transcript Page 8 of 10 HC-NIC Page 8 of 10 Created On Tue May 10 00:32:41 IST 2016 R/SCR.A/1782/2016 ORDER of the same after ascertaining the genuineness of the same so as to rule out any possibility of tampering. This exercise should be completed within a period of two weeks from today and thereafter a supplementary report be filed in that regard, a copy of which shall be supplied to the accused. The trial court shall proceed thereafter to summon the two witnesses for their examination and re­summon the first informant as prayed for.

57. I am conscious of the fact that the trial is in progress and the exercise to be undertaken as directed would delay the trial, but that by itself should not come in the way when the evidence is necessary for the just decision of the case. The Supreme Court in the case of Sudevanand Vs. State, through CBI, reported in (2012) 3 SCC 387, ordered re-examination of an approver, after a period of twenty years. I may quote para 34 of the said decision.

"34. Mr. Dey contended that Vikram's statement that he is alleged to have made in jail has no legal sanctity and it came to be made and recorded in a manner completely unknown to law. Mr. Dey may be right but on that ground alone it would not be correct and proper to deny the application of Section 391 of the Cr.P.C. Take the case where, on the testimony of the Approver, a person is convicted by the trial court under Sections 302 and 120­B etc. of the Penal Code and is sentenced to a life term. After the judgment and order passed by the trial court and while the convict's appeal is pending before the High Court, the 'Approver' is found blabbering and boasting among his friends that he was able to take the Court for a ride and settled his personal score with the convict by sending him to jail to rot at least for 14 years. Such a statement would also be completely beyond the legal framework but can it be said that in light of such a development the convicted accused may not ask the High Court for recalling the Approver for further examination."

58. Consequently, both the petitions are allowed and the impugned order dated 5th November, 2014 is ordered to be quashed. The trial court shall proceed further subject to the provisions of the evidence act, particularly, those contained in Chapter 5 thereof."

Page 9 of 10 HC-NIC Page 9 of 10 Created On Tue May 10 00:32:41 IST 2016 R/SCR.A/1782/2016 ORDER

This Court is also made aware that the trial is in progress and is at its fag end, and therefore, this exercise may surely further delay the proceedings. However, what is important is a just decision in the matter and not the completion of the trial alone .

Resultantly, the order impugned is quashed. The Investigating Officer shall record under Section 173(8) of the Code, the statement of witnesses who have interviewed the complainant in the GTPL News Channel. The Investigating Officer shall collect CD and prepare a transcript of the same after ascertaining the genuineness of the same. This exercise shall be completed within two weeks from the date of receipt of copy of this order. The supplement report shall be filed and copy of which shall be supplied to the accused. The trial Court shall issue summons to the witnesses and re- summon the first informant also.

With these directions, this petition is allowed. Rule is made absolute to the aforesaid extent.

Direct service is permitted.

(MS SONIA GOKANI, J.) BINA Page 10 of 10 HC-NIC Page 10 of 10 Created On Tue May 10 00:32:41 IST 2016