NIZAMUDDIN FAKIRUDDIN KAZI v. STATE — 1991 DIGILAW 151 (GUJ)

B. J. SHETHNA, J. ( 1 ) PRESENT petitioners who are the accused with one Rahishkhan Pathan against whom complainant Rafiuddin Kazi filed a complaint for the offences punishable under Secs. 506 and 114 of I. P. C. before Valsad (Rural) Police Station on 10-3-1989 at 12-45 p. m. which is registered as C. R. No. I-59 of 1989 have filed this petition before this Court in exercise of its powers under Art. 226 of the Constitution of India and prayed that the impugned complaint be quashed against the petitioners. ( 2 ) MR. Shah learned Advocate for the petitioners submitted that the impugned complaint is required to be quashed on the following grounds : (1) that the complaint filed against the petitioners is false, (2) taking the averments made in the complaint as it is, no case is made out under Secs. 506 and 114 I. P. C. , (3) the investigation is mala fide and (4) under Sec. 167 (5) Cr. P. C. the investigation is not concluded within a period of 6 months from the date of arrest of the accused, therefore, the learned Magistrate has to stop further proceedings. In support of his aforesaid contendions Mr. Shah learned Advocate for the petitioners relied upon the judgments of the Supreme Court : 1. AIR 1990 SC 1962 in the case of Niranjan Singh Karam singh Punjabi v. Jitendra Bhimraj Bijja and Ors. 2. AIR 1988 SC 709 in the case of Madhavrao Jiwaji Rao scindia v. Sambhajirao Chandrojirao Angre. 3. AIR 1976 SC 1947 in the case of Smt. Nagawwa v. Veeranna shivalingappa. 4. AIR 1982 SC 949 in the case of State of West Bengal and ors. v. Swapan Kumar Guha and Ors. ( 3 ) THERE cannot be any dispute regarding the well established principles of law laid down by the Honble Supreme Court in the aforesaid judgments. However, the averments made in the complaint disclose a prima facie case against the petitioners and if the same is proved against them at the trial, they would be convicted also. None of the aforesaid judgments of the Supreme Court is applicable to the facts of the present case, therefore, the judgment are not discussed at length. ( 4 ) THE first contention of Mr. None of the aforesaid judgments of the Supreme Court is applicable to the facts of the present case, therefore, the judgment are not discussed at length. ( 4 ) THE first contention of Mr. Shah that the complaint is required to be quashed because it is false, cannot be accepted because the complainant is not joined as a party in this petition and there is nothing on the record on which it can be said that the complaint is false. Merely alleging in the petition that the complaint is false is not enough to quash the complaint in a petition which is filed under Art. 226 of the Constitution of India. ( 5 ) MR. Shah next contended that the averments made in the complaint taken as it is to be true, no offence under Sec. 506 is made out. This submission of Mr. Shah cannot be accepted for the simple reason that as per the complaint, the accused did give threat to the complainant to his life and property. If the averments made in the complaint ultimately proved in the trial, then the petitioner would be convicted, therefore, this contention has also no merits and it is rejected. ( 6 ) MR. Shah next contended that the investigation is mala fide and therefore, the complaint should be quashed. In support of his contention he has sought to rely upon the averments made in the petition which are made on oath. However, common affidavit-in-reply is filed by Mr. V. C. Desai Addl. Police Sub-Inspector, valsad (Rural) Police Station in Spl. Cri. Application Nos. 1319 to 1323 of 1990 wherein these allegations have been clearly denied. In the said affidavit, it has also been stated that the petitioners are in the habit of making false allegations against the Police department and the Police is acting bona fide according to law. This Court cannot decide the question whether the investigation is mala fide in petition which is filed under Art. 226 of the Constitution of india when there are two different conflicting version on affidavit. 6a. Apart from that fact, I fail to under stand that how the impugned complaint can be quashed when it is mala fide. This Court cannot decide the question whether the investigation is mala fide in petition which is filed under Art. 226 of the Constitution of india when there are two different conflicting version on affidavit. 6a. Apart from that fact, I fail to under stand that how the impugned complaint can be quashed when it is mala fide. Even assuming for the sake of argument the Police investigation is full of mala fide, it would not be a ground to quash the impugned complaint, if prima facie case is made out in the complaint against the accused. Therefore, there is no substance in this contention also, and it is rejected. ( 7 ) MR. Shah has also submitted that in this case the accused were arrested before a period of 6 months and therefore, under Sec. 167 (5) Cr. P. C. the magistrate has to stop the further investigation and therefore, this Court should quash the complaint. The submission made by Mr. Shah proceeds upon an assumption that the offences alleged against the petitioners in the complaint are summons triable. However, from the bare reading of the complaint, prima facie case is made out against the accused under Sec. 506 (2) I. P. C. which is a warrant triable case and not a summons triable case, therefore, there is no merit in this contention hence it is rejected. However, even assuming for the sake of argument that the case would fall under Sec. 506 (1) and not under Sec. 506 (2) which would be a summons triable case, even then, merely because the investigation cannot be concluded within 6 months from the date of arrest of the accused, the learned magistrate cannot pass an order stopping further investigation into the offence. Though the word "shall" is used in Sec. 167 (5) Cr. P. C. it cannot be read as "must", because of the simple reason that Sec. 167 (5) Cr. P. C. itself provides that if the investigation is not concluded within a period of 6 months in a summons case from the date on which the accused is arrested, the investigation officer, investigating into the case, if he is able to satisfy the learned Magistrate that for special reasons and also in the interest of justice, the investigation is required to be continued beyond the period of 6 months, then the Magistrate cannot pass an order stopping further investigation. The learned Magistrate has been given a discretion under Sec. 167 (5) Cr. P. C. to pass an order of stopping further investigation in a summons case if it is not concluded within a period of 6 months from the date on which the accused was arrested; but that discretion has to be exercised in a proper manner keeping in mind sound principle of law. if the investigating officer satisfies the learned Magistrate for special reasons, the learned Magistrate has to continue the investigation beyond the period of 6 months in the interest of justice. That is the only paramount consideration for the learned Magistrate. ( 8 ) AT this stage provisions of Sec. 167 (6) of Criminal Procedure Code are required to be considered. Under Sec. 167 (6) of Criminal Procedure Code wide powers are given to the Sessions Judge to vacate the order made under subsec. (5) of Sec. 167 of Criminal Procedure Code by the learned Magistrate of stopping further investigation, if the Sessions Judge is satisfied on an application made to him or otherwise, i. e. , in his suo motu power he can direct further investigation to be made into the offence subject to such directions with regard to bail and other matter as he may specify. That means that normally, the learned magistrate should not pass an order of stopping further investigation in a summons case where the period of 6 months is over after the date of arrest of the accused, such an order can be passed only in rare cases, where the investigation officer fails to satisfy the learned Magistrate to continue the investigation beyond the period of 6 months in absence of special reason and if it is not in the interest of justice to continue the investigation. Therefore, the word "shall" used in Sec. 167 (5) Cr. P. C. is not be read as "must" but "may". In this case as stated above, a common affidavit-in-reply is filed in all five petitions and in the said affidavit, the investigating officer has stated that since he took over the investigation on 12-2-1990 in respect of C. R. No. I-59 of 1989 (in this case) on 21-1-1990 and in respect of C. R. Nos. 152, 153, 154 and 155 of 1989, he arrested 2 of the accused persons. 152, 153, 154 and 155 of 1989, he arrested 2 of the accused persons. He has further stated that, as some of the accused could not be arrested till the date of filing of his affidavit, the charge-sheet could not be filed. Thus this type of situation may arise where there are more than one accused and out of them some accused are arrested and some are not and in the process if six months period is over, then the Magistrate cannot order to stop further investigation. Likewise, in other circumstances also the Magistrate has to exercise his judicial discretion in a sound manner and keeping in mind the paramount consideration of interest of justice only. Thus, there is no substance in this contention and hence it is rejected. ( 9 ) NO other contentions are raised by Mr. Shah learned Advocate for the petitioners and I do not see any merit in the contentions already raised by Mr. Shah. Therefore, this petition is required to be dismissed. Accordingly, this application fails and dismissed. Rule discharged. Interim relief stands vacated. Mr. Shah submitted a draft amendment on oath today. However, the draft amendment was already granted on 12-4-1991. The draft amendment be kept on record of each case. Mr. Shah learned Advocate for the petitioners request that the interim relief granted earlier on 7-11-1990 be continued for a period of 8 weeks. Mr. K. T. Dave, learned Addl. P. P. for the state objects to this interim relief being continued. He submitted that the charge-sheet is already ready but in view of the injunction order granted by this Court earlier, the Police is not able to file charge-sheet so far. Having regard to the facts and circumstances of the case, the request made by Mr. Shah to continue the interim relief is refused. .