Allowed

Suresh Kumar Chandela S/O Shri Dataram Chandela v. Zaheer Abbas , Police Inspector, S.H.O.

Rajasthan HC22 Nov 2024CRLR/1119/2024

Case brief

AI extract

What is this about?

The High Court allowed a criminal revision challenging the dismissal of an application for further investigation. The Court permitted further probe under Section 173(8) Cr.P.C. due to contradictory forensic reports on disputed wills and the unreliability of the initial investigation, upholding the lower court's decision.

What did the court decide?

The revision petition was dismissed, and the order allowing further investigation by the Additional District and Session Judge was upheld.

Suresh Kumar Chandela S/O Shri Dataram… — Civil Procedure and Limitation | Rajasthan HC (2024)

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[2024:RJ-JP:47754]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Revision Petition No. 1119/2024

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Suresh Kumar Chandela S/o Shri Dataram Chandela, Aged About 43 Years, R/o Flat No. 9102, Block -26, Rangoli Garden, Vaishali Nagar, Jaipur(Rajasthan)

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----Petitioner

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Versus

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Zaheer Abbas, Police Inspector, S.H.O., Police Station Chitrakoot, Jaipur West.

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State Of Rajasthan, Through PP

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Mahesh Sharma S/o Premnarayan Sharma, R/o Plot No. 66, Patel Colony, Sardar Patel Marg, C-Scheme, Jaipur, Currently Residing At Dhanuka Group Sunshine Shaliram Pent House, Flate No. 501, Heerapura A, Vaishali Nagar, Jaipur.

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Smt. Sumitra Sharma W/o Mahesh Sharma, R/o Plot No. 66, Patel Colony, Sardar Patel Marg, C-Scheme, Jaipur, Currently Residing At Dhanuka Group Sunshine Shaliram Pent House, Flate No. 501, Heerapura A, Vaishali Nagar, Jaipur.

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Sitaram Sharma S/o Late Shri Babulal, R/o H-67, Aakar Marg, Banipark, Jaipur.

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Smt. Sangeeta Sharma W/o Shri Sitaram Sharma, R/o H-67, Aakar Marg, Banipark, Jaipur.

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Chhitarmal Sharma S/o Nanagram Sharma, R/o Kothotya Ki Dhani, Village Neendar, Tehsil Amer, Jaipur.

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Kailash Chand Sharma S/o Pemaram Sharma, R/o Ghatalo Ki Dhani, Daulatpura, Tehsil Amer, District Jaipur.

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----Respondents

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For Petitioner(s) : Mr. Kapil Gupta Mr. Akshay Sharma For State : Mr. Amit Punia, PP For Complainant(s) Mr. Akshay Singh Mr. Pankaj Gupta Mr. Sudhir Jain

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HON'BLE MR. JUSTICE GANESH RAM MEENA

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	Order
Date of Reserve	:::	November 14, 2024
Date of Pronouncement	:::	November 22, 2024

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This S.B. Criminal Revision petition under section 397 read with section 401 Cr.P.C has been preferred by the revisionist- petitioner for the quashing and setting aside of the order dated 29.06.2024 passed by the learned District and Session Judge, Jaipur Metropolitan -II in criminal revision petition no. 58/2024, titled Zaheer Abbas and anr. v. Mahesh and others.

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The brief facts of the case as put forth by the counsel for the revisionist-petitioner are that the revisionist-petitioner had filed a complaint before the concerned Magistrate who thereafter exercising his power under section 156(3) Cr.P.C, sent the said complaint to the SHO, Police Station, Chitrakoot, Jaipur for investigation. Upon receiving the complaint the SHO concerned registered a first information report bearing No. 17/2021 for the offences under section 420, 467, 468, 471 and 120-B IPC. It is alleged in FIR that one Shri Sohanlal Sharma executed a will in favour of the revisionist-petitioner on 23.09.2019. The will was registered on 23.09.2019, during the lifetime of the executor of the will, Shri Sohan Lal. Further the accused-Sangeeta Sharma is alleged to be one of the witness of the will executed in favour of the revisionist-petitioner by Shri Sohan Lal. Having the knowledge of the existence of the said will, Sangeeta Sharma in connivance with other persons is alleged to have prepared a forged and fabricated will of late Shri Sohan Lal Sharma, in her favour, on 22.02.2020 and after the death of Sohan Lal Sharma on 29.02.2020, she got the forged will registered on 17.03.2020. During investigation, the

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accused persons had made an application before the police authorities for transfer of investigation to other authorities. Thereafter the investigation was transferred to the Special Operation Group (S.O.G). As per the FSL report, the signature of late Shri Sohan Lal on the will dated 23.09.2019 are found to be genuine and the signature on the will dated 22.02.2020 are found to be forged and dissimilar to the admitted signature of late Shri Sohan Lal. Moreover, the bail applications of the accused persons have been dismissed by this Court. Thereafter, at the instance of the accused persons the investigation was again transferred. Since the investigation had not been concluded within the stipulated time as given under section 167 (2) Cr.P.C, the accused persons were released on default bail vide order dated 30.09.2021. Thereafter, the investigation was again transferred to the S.O.G, Department of Police. After investigation, the S.O.G sent the conclusion report of the investigation to the concerned Police Station. After receiving the investigation report, the SHO, Police Station, Chitrakoot, Jaipur submitted the charge sheet against the accused persons for the offences under section 420, 467, 468, 471 and 120-B IPC. After filing of the charge sheet, the learned Magistrate took cognizance for the said offences on 01.04.2023. Thereafter, the SHO filed an application before the court of Metropolitan Magistrate, Jaipur on 28.05.2024 for grant of permission to conduct further investigation. The Magistrate after considering the contents of the application, dismissed the said application by an order dated 01.06.2024. Thereafter, the SHO concerned

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filed a revision petition before the Learned District and Session Judge, Jaipur Metropolitan -II on 14.06.2024. The matter thereafter was transferred to the Court of Additional District and Session Judge, Jaipur Metropolitan-II. The learned Session Judge allowed the revision petition on 29.06.2024. Thereafter, being aggrieved by the order dated 29.06.2024, the revisionist petitioner has preferred the present revision petition.

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The Learned counsel on behalf of the revisionistpetitioner has submitted that the investigation conducted by the S.O.G appears to be proper on the face of it and there were no lacuna in the same as the entire evidence had been collected fairly and upon appreciation of those evidences and consideration of the expert opinion by the FSL report, it had been concluded that a case of cheating and forgery is made out against the accused persons and that the investigation had been carried on in a fair and impartial manner. The counsel further submits that on a bare perusal of the application filed by the SHO, it becomes clear that the police want to conduct de-novo/re-investigation under the garb of further investigation and that the Investigating Officer is not an aggrieved person and was thus not authorized to file the application dated 28.05.2024. Further, with respect to the FIR no. 17/2021, the investigation has been conducted a total of six times. Counsel further submits that as per the circular issued by the government of Rajasthan dated 06.10.2019, an investigation can be transferred a maximum of three times only and thereafter the investigation can be transferred only after the

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prior approval of the State government on the request of the Director-General of Police. However, in the present case the accused persons have filed applications for transfer even after the taking up of the cognizance. Thus, the application dated 28.05.2024 is in clear violation of the circular above mentioned. The counsel submits that there is no need for further investigation as the Investigation Agency and the Investigating Officer want to wipe off the conclusion of the earlier investigation by means of conducting a re-investigation. In the circumstances, the impugned order is arbitrary and illegal and deserves to be quashed and set aside. The council thus prays that their revision petition be allowed.

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The Public prosecutor appearing for the State as well as private Counsels for the respondents submitted that the will executed in favour of Sangeeta Sharma dated 22.02.2020 cannot be said to be forged and fabricated since it was, in fact, made before the death of the executor of the will, Shri Sohan Lal and no medical opinion with respect to the health of Shri Sohan Lal was given as regards the concerned period, such that the will so concerned could be said to be made by an unfit executor. Further, as per the conclusion of investigation in FIR no.17/2021, it is clearly stated that there were both, thumb impressions and signatures on the alleged wills, but no forensic examination of the thumb impression was done and even the FSL examination of t h e signature was done with the disputed documents that is, the signature on the will allegedly to have

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been executed in favour of the petitioner was taken up as the metric of comparison and this fact came to the knowledge of the Investigating Officer when the thumb impression on the alleged wills were examined with undisputed documents in FIR no. 227/2021 and moreover the thumb impression as on the will executed in favour of the petitioner were found to be unfit for examination. Further, conclusion of the investigation as on page 43 and 44 of the revision petition clearly highlight the circumstances in which the alleged will in favour of the petitioner was forged. As per the FSL examination in FIR no.227/202, the will executed in favour of Sangeeta Sharma was found to not be forged whereas the will executed in favour of the petitioner could not with certainty be said to have not been forged. Therefore, the conclusion arrived by the investigation in the FIR no.17/2021 was arrived without completing the investigation and hence when this ‘additional fact’ as discovered in the investigation of FIR No. 227/2021, subsequently came into the knowledge of the Investigating Officer, he was well within his right under section 173 (8) CrPC to continue with further investigation in order to ensure complete justice and assure the validity of the wills. The counsel also submitted that the petitioner is habitually found to be involved in matters of cheating and breach of trust and is a person of ill repute, he has 7 cases pending against him and has on previous occasions also been arrested in these cases. The learned Public Prosecutor and the Counsels for the respondents thus contended that based on the evidence both documentary as well as the expert opinion

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on the basis of the FSL reports seem to point out the validity of the will executed in favour of Sangeeta Sharma. Thus, there is no ambiguity in the order passed by the Learned trial Judge on the revision petition filed by the Investigating Agency and further investigation be allowed in the present case. Counsel for the respondents have referred to the following judgements: State versus Hemendhra Reddy 2023 SCC OnLine SC 515 ; Vinubhai Haribhai Malviya versus State of Gujarat 2019 (17) SCC 1.

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Considered the submissions made at bar and also perused the order under challenge as well as the application concerned and other relevant records placed before this Court.

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The principal question of law that falls for the consideration of this Court in the present litigation is whether the Court of Metropolitan Magistrate, Jaipur was justified in dismissing the application for further investigation and whether further investigation can be permitted in the given factual matrix of the case.

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In the present case, though the Metropolitan Magistrate dismissed the application for further investigation by an order dated 01.06.2024, the Court of Additional District and Session Judge, Jaipur Metropolitan–II allowed the revision petition on 29.06.2024. Considering the fact that this Court has been approached to set aside the order of the Additional District and Session Judge, we deem it necessary to discuss the issue on

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merits and assess the settled proposition of law as regards further investigation.

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At this stage, it is pertinent to give due consideration to 2 facts while deciding on this petition. Firstly; signatures are a fundamental aspect of any legal document, like these wills and forensic verification of the same aims to confirm the authenticity of signatures, ensuring they are legitimate and executed by the purported signatory. The essential requirement is to compare the questioned signature (the one in question for authenticity) with known (genuine) signatures of the same individual. It is only the genuine signatures which can provide certainty and reliability to the contents of legal documents, reinforcing their integrity and validity. However, in the present case, the Investigating Officer concerned (w.r.t FIR no. 17/2021) did not acquire any undisputed signature from an official document for the purpose of comparison and examination of the same with the disputed signatures. He, thus, did not follow due procedure in the conduction of forensic examination and hence the allied FSL report concerned cannot be relied upon. Secondly; the concerned wills had both, signatures as well as thumb impressions, therefore, it was essential for the Investigating Officer to seek forensic analysis of both the contents. Handwriting science and finger print examination both are significant branches of Forensic Science. It is only upon an inter-se examination and comparison of the thumb impression on the questioned document with the impression on an otherwise standard

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document which would reveal if either of the two sets were consistent in detailed characteristic features, which would in turn establish the authenticity of the will concerned. The authorship of questioned documents was thus to be matched with any undisputed supplied specimen documents in order for it to be a holistic consideration for the purpose of ascertaining the authenticity of the documents.

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It is only during the course of investigation in FIR no. 227/2021 that for the purpose of forensic examination of the thumb impressions of the executor of the will-Shri Sohan Lal Sharma (deceased) on the 2 disputed wills, an undisputed document was recovered from the Sub-Registrar Office. Upon due forensic examination of the 3 documents by the concerned bureau, it was discovered that the impressions on the will dated 22.02.2022, in favour of Sangeeta Sharma were genuine and not forged, whereas the impressions on the will dated 20.09.2019, in favour of Suresh Chandela, were ‘unfit’. This conclusion varies from the forensic opinion in case of FIR no. 17/2021. Since we have two distinct opinions on the same matter, the rule of equity demands that in the interest of justice, further investigation on the matter be carried on to ferret out the true conclusion.

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As regards the revisionist-petitioners argument that an Investigating Officer cannot be said to be an aggrieved party for the sake of filing a revision petition, this Court is of the opinion that an Investigating Officer is indeed a concerned party. Though,

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the concerned revision petition was filed by the Investigating Officer, it was also filed by and in the name of the State. The Investigating Officer had filed the application for further investigation under the directions of his superior authority. It is only the Investigating Officer who can be said to be fully well aware of the facts of the case and thus it cannot be denied that the Police has unfettered powers of investigation which can continue even after the charge sheet has been submitted and cognizance thereon has been taken, in case, further material comes to light. Hence, we assert that the Police has ample power to further investigate the matter by virtue of Section 173(8) Cr.P.C and the same is within the statutory powers of the investigating agency. Further, even by virtue of Section 36 Cr.P.C., the State Police has ample power to investigate a crime to its satisfaction. Relevant portion of Section 36 Cr.P.C. reads as follows: “ Police officers superior in rank to an officer in charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer

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within the limits of his station. ”

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The power of the Investigating Officer to make further investigation in exercise of its statutory jurisdiction under Section 173(8) of the Code and at the instance of the State having regard to Section 36 thereof should be considered in different contexts. The Investigating Officer and the Investigation Agency in light of the provisions of Section 173(8) Cr.P.C. are under a statutory duty of conducting a “fair and proper investigation” and therefore, the Legislature has culled out certain canons emphasizing that

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investigation must be unbiased, honest, just and in accordance with law. It is also pertinent to note that if, during the course of investigation, the Investigating Officer is satisfied that there is a lapse or defects in the investigation or he discovers some fresh facts or materials or if he is satisfied that a further investigation has to be conducted, the Investigating Officer or the Investigation Agency on its own motion can trigger an application for further investigation under Section 173(8) Cr.P.C. Moreover, it is commonly noted that often times if any loopholes are discovered in an investigation, remarks are made against the Investigating Officer and not the higher authorities concerned. In such circumstances, I am of the opinion that the filing of application for further investigation by the Investigating Officer on some material ground cannot be regarded as faulty. Furthermore, the said objection was not raised by the petitioner before the Court below.

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The revisional jurisdiction of the Court u/s 397 CrPC can be exercised where there is a palpable error or noncompliance with the provisions of law or the decision is completely erroneous or where the judicial discretion is exercised arbitrarily. These are not exhaustive classes but merely indicative. Normally, revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding. Essentially, the revisional power is discretionary with the court to see that justice is done in accordance with the

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recognized principles of criminal jurisprudence. The said proposition of law has also been recognised by the Hon’ble Apex Court in a plethora of cases including the recent judgments in the case of- K. Ravi v. State of T.N., 2024 SCC OnLine SC 2283 ; Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204.

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It has also been noted that the order dated 01.06.2024 passed by the Court of Metropolitan Magistrate number. 09, Jaipur on the application filed by the SHO, Police Station Chitrakoot, Jaipur, is not a speaking order and has rather been passed mechanically and without application of mind. The Court of Magistrate has not recorded any reasons for dismissal of the application and has not set out any legal principle which is relevant and applicable to the facts. The order seems to have been passed without taking into account the relevant facts, evidence, or law. This Court views such nonspeaking orders negatively and seeks to de-recognize them. There was a duty cast upon the court to deal with the issues raised and thereafter pass a reasoned judgment as such nonspeaking orders can undermine judicial integrity. Therefore, this Court is of the opinion that the learned Additional District and Session Judge number. 08, Jaipur Metropolitan-Second has rightly passed the order dated 29.06.2024 allowing the application for further investigation.

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The observation of the Hon’ble Supreme Court in its judgment in the case of K. Vadivel vs. K. Shanthi and Ors.; 2024 SCC Online SC 2643 , in paragraph number 33 is relevant to our consideration. The same has been reproduced herein under:-

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“ 33. ….. There must be some reasonable basis which should trigger the application for further investigation so that the court is able to arrive at a satisfaction that ends of justice require the ordering/permitting of further investigation. In Hasanbhai Valibhai Qureshi v. State of Gujarat, (2004) 5 SCC 347), this Court held as under:—

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“13. In Ram Lal Narang v. State (Delhi Admn.) [(1979) 2 SCC 322] it was observed by this Court that further investigation is not altogether ruled out merely because cognisance has been taken by the court. When defective investigation comes to light during course of trial, it may be cured by further investigation, if circumstances so permitted. It would ordinarily be desirable and all the more so in this case, that the police should inform the court and seek formal permission to make further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offences found during course of proper investigation is as much relevant, desirable and necessary as an expeditious disposal of the matter by the courts. In view of the aforesaid position in law, if there is necessity for further investigation, the same can certainly be done as prescribed by law. The mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and substantial as well as effective justice. We make it clear that we have not expressed any final opinion on the merits of the case.”

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The scheme and language of the Code of Criminal Procedure, 1908 itself prescribes for the provision of ‘further investigation’ in appropriate cases. This view can be supported by the judgment of the Hon’ble Apex Court in the case of Vinubhai Haribhai Malaviya v. State of Gujarat, (2019) 17

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SCC 1 . The relevant paragraph has been quoted below-

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“ 25. It is thus clear that the Magistrate's power under Section 156(3) CrPC is very wide, for it is this judicial authority that must be satisfied that a proper investigation by the police takes place. To ensure that a “proper investigation” takes place in the sense of a fair and just investigation by the police—which such Magistrate is to supervise—Article 21 of the Constitution of India mandates that all powers necessary, which may also be incidental or implied, are available to the Magistrate to ensure a proper investigation which, without doubt, would include the ordering of further investigation after a report is received by him under Section 173(2); and which power would continue to enure in such Magistrate at all stages of the criminal proceedings until the trial itself commences. Indeed, even textually, the “investigation” referred to in Section 156(1) CrPC would, as per the definition of “investigation” under Section 2(h), include all proceedings for collection of evidence conducted by a police officer; which would undoubtedly include proceedings by way of further investigation under Section 173(8) CrPC.”

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The power of the Court to allow further investigation has been reinstated by the Hon’ble Supreme Court in a multitude of cases. Recently, in the case of Dablu Kujur v.

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State of Jharkhand, (2024) 6 SCC 758 , in paragraph no.

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15 has held as under-

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“15. When such a police report concludes that an offence appears to have been committed by a particular person or persons, the Magistrate has three options:

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(i) he may accept the report and take cognizance of the offence and issue process, he may direct further investigation under subsection (3) of Section 156 and require the police to make a further report, or

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(ii) he may disagree with the report and discharge the accused or drop the proceedings. If such police report concludes that no offence appears to have been committed, the Magistrate again has three options:

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(i) he may accept the report and drop the proceedings, or

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(ii) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process, or (iii) he may direct further investigation to be made by the police under sub-section (3) of Section 156.”

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16 . In the present case, on the advent of newly adduced evidence, it is apparent that there exists a contradiction in the forensic examination reports. The complaint moved by SHO, Police Station, Chitrakoot, Jaipur is to the effect that although the chargesheet has been filed in the FIR no. 17/2021, the IO concerned has not been able to establish the genuineness of either of the disputed wills and furthermore, as per the FSL examination in FIR no. 227/2021, the will executed in favour of Sangeeta Sharma was found to not be forged whereas the will executed in favour of the petitioner could not with certainty be said to have not been forged. This new evidence has come to light

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and as a consequence of which conduction of further investigation is deemed necessary. It is thus crucial to cumulatively read these facts which would go to clarify the indispensable need for want of further investigation.

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The concern of the revisionist-petitioner is that the application filed by the SHO, if permitted, would result in ‘wiping out’ of the earlier investigation and that under the garb of further investigation, the SHO seeks to lead a reinvestigation of the case. This Court is of the opinion that, firstly; upon a bare perusal of the application filed by the SHO, it is appreciably manifest that he seeks to continue with the already ongoing investigation, that is, he seeks to ‘further’ investigate the matter being mindful of the new evidences that have come to light. Secondly; it will be a travesty of justice, if this court cannot be permitted to direct “further investigation” to clear its doubt and to order the investigating agency to further substantiate its chargesheet. The satisfaction of the Court is a condition precedent to commencement of further investigation. Whether the Court can direct “further investigation” or not is a matter dependent upon the facts of a given case. Where the Court of Magistrate can only direct further investigation, the courts of higher jurisdiction can direct further reinvestigation or even investigation de novo depending on the facts of a given case. It will be the specific order of the court that would determine the nature of investigation. Thus, the

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conjecture of the revisionist-petitioner that the SHO seeks to reinvestigate the matter, in my opinion, is an impetuous assumption and does not deserve any appreciation at this stage.

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It is established now that it is the discretion of this Court, whether to allow further investigation or not. I am of the opinion that certain fresh facts have come to light which would lead to inculpating or exculpating certain persons, arriving at the truth of the matter and doing substantial justice in the criminal case, which are all more important than having to deny further investigation on a surmise ground as has been raised by the revisionist-petitioners.

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It appears from the materials on record that at the end of the investigation in FIR no. 17/2021, the factum of authenticity of the wills concerned could not be established. It is only after the wills were examined with undisputed documents during the course of examination in FIR no. 227/2021 that new evidences emerged to disprove the allegations levelled against the above named accused and to substantiate the fact of genuineness of either of the concerned wills, it is just and necessary to further investigate the above case u/s 173(8) Cr.P.C in the interest of justice.

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In view of the aforesaid position in law, if there is a necessity for further investigation, the same can certainly be carried on, as prescribed by law. Any assumptious ground in regard to the conduction of investigation should not

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stand in the way of allowing further investigation, if that would help the Court in arriving at the truth and deliver real, substantial as well as effective justice. Mere filing of the charge sheet cannot be an impediment in ordering further investigation or even re-investigation/de novo investigation, if the facts so warrant.

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Accordingly, this revision petition is dismissed and the order of the Additional District and Session Judge, Jaipur Metropolitan – II dated 29.06.2024 is upheld.

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Looking to the fact that the criminal case was registered in the year 2020, it would be appropriate to direct the Investigating Officer to complete the investigation/further investigation as allowed by the Court below, as early as possible and preferably within a period of 3 months, after taking all necessary steps to reach a fair conclusion.

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(GANESH RAM MEENA),J

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N.K. Sharma/Dy Registrar/ 261

Suresh Kumar Chandela S/O Shri Dataram Chandela v. Zaheer Abbas , Police Inspector, S.H.O.

Case brief

What is this about?

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Suresh Kumar Chandela S/O Shri Dataram Chandela v. Zaheer Abbas , Police Inspector, S.H.O.

Case brief

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What did the court decide?

What the court decided

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