Disha vs State Of Gujarat & Ors

Disha ....Petitioner

Versus

State of Gujarat & Ors. ....Respondents

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This writ petition has been filed for seeking the directions that

investigations into the financial transactions of the petitioner's late

husband Shri Deven Malviya and his associates through various firms,

and the mysterious cause of her husband's death in Hotel Marriott,

Senapati Bapat Road, Pune be transferred to Central Bureau of

Investigation (hereinafter called CBI) under Section 173 of the Code

of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.); and

further to hand over all complaints made by various investors against

the firms owned by her family members to the CBI for investigation.

2. Facts and circumstances giving rise to this case are as under:

A. Petitioner indulged herself in commercial/business activities

alongwith her husband late Deven Malviya, particularly in share

broking in the name and style of M/s Disha Credit and Marketing

Services alongwith one another partner Mr. Ajay Gandeja in Nagpur

from 1998 to 2004.

B. Late Mr. Deven Malviya, for certain reasons, shifted from Nagpur

to Pune and started his own share broking business in the year 2007.

Petitioner's husband and his maternal uncle namely, Shri Narendra

Dhruv and his sons started share broking business in Rajkot in the

name of M/s Vision Equities and Commodities and subsequently at

Ahmedabad also. In 2008, another firm was constituted in the name

of Vibrant Equities and Commodities, of which the petitioner was the

proprietor.

C. During that period, i.e., between 2008 and 2010, petitioner's

husband, his maternal uncle and his sons appointed a large number of

agents/franchises for their firms all over Gujarat and the said agents

collected a huge amount from large number of persons/investors

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giving them assurance that their money would be multiplied within a

short span of time.

D. On 28.12.2010, Late Deven Malviya, petitioner's husband

checked in Hotel Marriott at Senapati Bapat Marg, Pune in a Room

on 20th floor. He jumped from 22nd floor of Hotel Marriott at 11.30

a.m. on 30.12.2010 and died spontaneously. The matter of death of

petitioner's husband is being investigated by Chhatushingi Police

Station, Pune.

E. An FIR No. CR No. 1-18/2011 was lodged on 12.1.2011 at

Gandhigram Police Station in Rajkot under Sections 406, 420 and

120-B of the Indian Penal Code, 1860 (hereinafter called IPC) by the

complainant with the allegations that the partners/ agents/franchises of

the firm owned by the petitioner herself had given fake promises to

the complainant and other investors that they would get Rs.1,40,000/-

in return of their investment of Rs.1,00,000/- within a short stipulated

period. But the investors could not get any amount. The accused

persons in conspiracy with each other made a fraudulent scheme

duping the innocent investors.

F. The police filed a charge sheet against 13 accused persons

including the petitioner after examining 23 witnesses. Seven accused

have already been arrested and further investigation is in progress for

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obtaining the Forensic Science Laboratory report in connection with

the seized Muddamaal (Crime property, e.g. Computer, CPU, Hard

disk etc.). According to investigation held, so far, it is evident that the

investors have been duped by petitioner's Firms for a sum of Rs.60

crores.

3. The grounds on which the transfer is sought are as follows:

(1) Petitioner will face acute harassment owing to the number of

investors.

(2) Petitioner likely to be victimised, and all associates, agents,

partners would suppress material information fastening all charges on

her to save themselves.

(3) Number of scattered complaints would lead to uncoordinated

investigation and not uncovering the truth.

(4) Death in most suspicious circumstances since the alleged scam

involves politicians, bureaucrats and influential business men who

could have abetted the suicide since they invested crores of rupees.

(5) Petitioner is interested in finding out the truth.

(6) Interference needed for putting the investigations on proper track

relating to the death of the husband/deceased and for enquiry into

scam by CBI.

(7) To avoid botch up in investigation due to prevailing corruption.

4. Heard Shri A.K. Sanghi, learned Senior counsel for the

petitioner, Shri H.P. Rawal, learned ASG for CBI, Shri N. Nanavati,

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learned counsel for the State of Gujarat and Shri Sanjay Kharde,

learned counsel for the State of Maharashtra.

So far as the case of suicide of petitioner's husband is

concerned, the respondent No.2, Maharashtra police, is investigating

the matter. During the investigation, three suicidal notes in the hand-

writing of the deceased have been recovered. Father of the deceased

identified the hand-writing of Deven Malviya, the deceased and

investigation is going on. However, according to the investigation so

far conducted it appears to be a plain and simple case of suicide, may

be because of pressure of investors in his commercial activities.

He was facing large number of demands from investors who

could not even get back the principal amount, what to talk of

multiplied amount or compounded interest etc. as assured by their

agents and collectors/franchises. Therefore, he could not stand the

pressure of his commitments, and as the angry investors were reported

to have forcibly demanded their money back and had seized the

documents of sale of house and office properties from his maternal

uncle at Rajkot.

5. The petitioner did not render any assistance whatsoever to the

Maharashtra Police in investigation of the said case, nor has she raised

any grievance before this court that the investigation conducted by the

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Maharashtra Police is not fair, though she is fully aware that the firms

owned by the petitioner and her family members/relatives had

collected huge amount from investors which had not been returned to

them as promised and they had been pressing hard for recovery of

their amount. In such circumstances, naturally a person will be under

the pressure and may also commit suicide. However, in view of the

fact that the matter is still being investigated by the Maharashtra

Police, we do not think it proper to make any comment on it.

6. So far as the Gujarat Police is concerned, according to the

counter affidavit filed by the State of Gujarat, only one FIR has been

lodged, wherein the investigation has been concluded and charge

sheet has been filed against 13 accused persons including petitioner.

7. In this background, the case is required to be examined as to

whether in the facts and circumstances of the case, where in case of

cheating, a charge sheet has been filed, the matter can, and is required

to be transferred for investigation/further investigation to the CBI.

8. In Kashmeri Devi v. Delhi Admn. & Anr., AIR 1988 SC

1323, this Court held that the magistrate can direct CBI to investigate

a case, after charge sheet has been filed, by exercising his powers

under Section 173(8) Cr.PC. It was stated accordingly:-

6 "Since according to the respondents charge-sheet

has already been submitted to the Magistrate we

direct the trial court before whom the charge-

sheet has been submitted to exercise his powers

under Section 173(8) CrPC to direct the Central

Bureau of Investigation for proper and thorough

investigation of the case. On issue of such

direction the Central Bureau of Investigation will

investigate the case in an independent and

objective manner and it will further submit

additional charge-sheet, if any, in accordance with

law. The appeal stands disposed of accordingly."

9. In Gudalure M.J. Cherian v. Union of India, (1992) 1 SCC

397, this Court however, held that the power of directing investigation

by CBI after chargesheet was filed, should not ordinarily be used, but

only when necessary. The investigation having been completed by

the police and charge-sheet submitted to the court, it is not for this

Court, ordinarily, to reopen the investigation specially by entrusting

the same to a specialised agency like CBI.

Same view has been reiterated by this Court in Punjab &

Haryana High Court Bar Assn., Chandigarh through its Secretary

v. State of Punjab & Ors. AIR 1994 SC 1023.

10. In R.S. Sodhi v. State of U.P. & Ors., AIR 1994 SC 38, this

Court examined the case where the accusations were directed against

the local police personnel. The Court held that it would be desirable

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to entrust the investigation to an independent agency like the CBI so

that all concerned including the relatives of the deceased may feel

assured that an independent agency was looking into the matter and

that would lend the final outcome of the investigation credibility.

However faithfully the local police may carry out the investigation,

the same would lack credibility since the allegations were against

them.

11. This Court refused to direct the investigation by the CBI, after

the charge sheet was filed in Vineet Narain & Ors. v. Union of

India & Anr. AIR 1996 SC 3386.

12. In case of persons against whom a prima facie case is made

out and a charge-sheet is filed in the competent court, it is that court

which will then deal with that case on merits in accordance with law.

(See : Union of India v. Sushil Kumar Modi, (1998) 8 SCC 661).

13. Relying on the observations in Union of India v. Sushil

Kumar Modi (supra), this Court in Rajiv Ranjan Singh `Lalan'

(VIII) v. Union of India,(2006) 6 SCC 613, reiterated that the Court

does not have the power to direct the CBI to investigate a matter after

the chargesheet was filed.

8 14. The above three cases i.e. of Vineet Narain, Sushil Kumar

Modi and Rajiv Rajan Singh were differentiated in a recent

judgment by this Court in Rubabbuddin Sheikh v. State of Gujarat

& Ors., AIR 2010 SC 3175, wherein this Court held:-

"Therefore, it can safely be concluded that in an

appropriate case when the court feels that the

investigation by the police authorities is not in the

proper direction and in order to do complete

justice in the case and as the high police officials

are involved in the said crime, it was always open

to the court to hand over the investigation to the

independent agency like CBI."

15. In Ashok Kumar Todi v. Kishwar Jahan & Ors., (2011) 3

SCC 758, this Court dealt with a case in which Kishwar Jahan,

mother of the deceased Rizwanur Rahman approached the High

Court to transfer the investigation of his death from local police to

CBI expressing her apprehension that State police would not conduct

investigation fairly because her son had contracted inter-religion

marriage with the daughter of a very affluent and influential

businessman, who had very close relationship with high police

officials. She produced sufficient material to establish the nexus

between the main accused and top police officials. This court

considering the reasonable apprehension in her mind about fair

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investigation by the State CID, directed CBI to investigate the cause

of death of Rizwanur Rahman.

(See also: and Narmada Bai v. State of Gujarat, JT 2011 (4) SC

279).

16. Thus, it is evident that this Court has transferred the matter to

CBI or any other special agency only when the Court was satisfied

that the accused had been very powerful and influential person or

State authorities like high police officials were involved and the

investigation had not proceeded with in proper direction or it had been

biased. In such a case, in order to do complete justice and having

belief that it would lend the final outcome of the investigation

credibility, such directions have been issued.

17. The case requires to be examined in the light of the aforesaid

settled legal proposition.

18. Shri A.K. Sanghi, learned senior counsel appearing for the

petitioner has tried to convince the court placing reliance on various

newspaper cuttings filed as Annexures submitting that it could be a

big scam of thousand of crores rupees, but we are not impressed by

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such submissions as the police could find out that the total

investments by investors had been only about Rs.60 crores.

19. In the instant case, the petitioner herself is the accused. A

huge amount of Rs.60 crores has been collected from innocent

persons giving them false assurances that their amount would have a

high premium. It has not been alleged in the petition that any of the

investor is very powerful or capable to manage the investigation

against the petitioner or that the case of suicide of her husband is not

properly investigated. It is no body's case that the police has

unnecessarily harassed the petitioner; rather, the record of the case

reveals that it is only after completing the investigation, that the

charge sheet has been filed against 13 persons including the petitioner.

No allegation of mala fide or bias has been alleged against any

investigating authority nor had it been pleaded that charge sheet had

been filed against the petitioner without investigating the case or

having any vindictive attitude towards the petitioner. In fact, the

petition is based purely on mere apprehension by the petitioner. None

of the grounds taken by the petitioner for transfer is tenable.

11 20. In such a fact-situation, we do not see any cogent reason to

interfere in the matter. The petition lacks merit and is accordingly

dismissed.

However, in case any action is taken by the investigating

agency against the petitioner, she would be at liberty to seek the

appropriate remedy before the appropriate forum and any observation

made herein, shall not be treated adverse to her.

....................................J.

(P. SATHASIVAM)

....................................J.

(Dr. B.S. CHAUHAN)

New Delhi,

July 20, 2011

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