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2000 DIGILAW 964 (GUJ)

Jitendrakumar Ramniklal Solanki v. STATE

2000-11-13

S.K.KESHOTE

body2000
S. K. KESHOTE, J. ( 1 ) THE petitioners by this petition titled under Art. 226 of the constitution, are praying for quashing and setting aside the orders dated 27th December, 1999, Annexure a" and dated 13th October, 2000 Annexure g of the Metropolitan magistrate, Court No. 15, Ahmedabad in Criminal Case No. 3996/99 arising out of inquiry Case No. 209/93 as also the order dated 20th October, 2000 (Annexure h) of the learned Additional Sessions Judge, Court No. 10, Ahmedabad in Criminal Revision application No. 514/99. In the alternative, the petitioners prayed to convert the non-bailable warrant into bailable warrant issued against the petitioners by the learned metropolitan Magistrate, Court No. 15, Ahmedabad under the order dated 27th december, 1999, Annexure a in the interest of justice. Second prayer has been made for calling of the record and proceeding of Criminal Case as well as criminal revision application. As usual, prayer has been made for grant of interim relief. ( 2 ) THIS Court on 24th October, 2000, issued notice to the respondent and interim relief in terms of para 14 (e), incorrectly mentioned as 14 (E) has been granted. ( 3 ) LEARNED counsel for the respondent correctly contended that this petition under Art. 226 of the Constitution is not maintainable. In this special criminal application, challenge has been made to the judicial orders passed by the Courts subordinate to this Court and this petition is maintainable only under Art. 227 of the Constitution. ( 4 ) LEARNED counsel for the petitioners has failed to satisfy this Court how this petition, which is titled under Art. 226 of the Constitution, is maintainable gains the orders passed by the Courts below. Be that as it may. Merely by mentioning wrong provision, this petition cannot be dismissed because the petition is maintainable under Art. 227 of the constitution and accordingly it is treated to be under Art. 227 of the Constitution. ( 5 ) BRIEFLY stating the facts of the case ar. e that the petitioner No. 1 is serving as assistant Inspector in I. T. I, and the petitioner No. 2 is the mother of petitioner No. 1, who is also in service as Clerk in the District Education Office. ( 5 ) BRIEFLY stating the facts of the case ar. e that the petitioner No. 1 is serving as assistant Inspector in I. T. I, and the petitioner No. 2 is the mother of petitioner No. 1, who is also in service as Clerk in the District Education Office. The petitioner No. 1 was married to one Rekhaben, daughter of Bhagwatiprasad on or around 24th January, 1993 and on 19th August, 1993 she was, as per the case of the petitioners, done to death by some unknown person in the absence of the petitioners. The petitioner No. 2 filed a complaint before the Ellisbridge Police Station, Ahmedabad on the same day i. e. on 19. 8. 1993. On or around 17. 11. 1993, the grandfather of deceased Rekhaben had lodged a complaint before Ellisbridge Police Station, Ahmedabad against the petitioners for the offence punishable under Sec. 498-A of IPC which was registered as I-C. R. No. 647/93 and the same is pending. The grandfather of the deceased Rekhaben had filed complaint under Sec. 200 of Crpc, 1973 before the Metropolitan Magistrate, Court No. 15, ahmedabad against the petitioners and one another accused being R. D. Rana. On this complaint, the Metropolitan Magistrate, Court No. 15, Ahmedabad ordered for investigation under Sec. 156 (3) of Crpc, 1973. It is the case of the petitioners that after making investigation in the said complaint, which was registered as M. Case No. 87/93, the Investigating Officer under Sec. 173 (2) read with Sec. 173 (5) of Crpc, 1973, has filed a summary report which was accepted by the learned Metropolitan Magistrate. It appears though very specifically not mentioned that a summary report submitted by police was not accepted by the Metropolitan Magistrate concerned and the complaint of the complainant was ordered to be inquired under Sec. 202, Crpc. After examining the complainant and other witnesses, learned Metropolitan Magistrate, Court No. 15, ahmedabad was pleased to issue non-bailable warrants against the petitioners on 27. 12. 1999. The petitioners preferred criminal revision application No. 28/2000 before this Court which was filed on 21. 1. 2000 and which came to be disposed of by this Court on 3. 5. 2000. After examining the complainant and other witnesses, learned Metropolitan Magistrate, Court No. 15, ahmedabad was pleased to issue non-bailable warrants against the petitioners on 27. 12. 1999. The petitioners preferred criminal revision application No. 28/2000 before this Court which was filed on 21. 1. 2000 and which came to be disposed of by this Court on 3. 5. 2000. This Court has observed that in case the petitioners appear before the Trial court on due date and requests that the non-bailable warrants be converted into bailable warrants, the Court is sure that the Trial Court would consider such a request sympathetically. The petitioners appear before the Trial Court on 8. 5. 2000 and requested that the non-bailable warrants issued may be kindly converted into bailable warrants. Learned Metropolitan Magistrate, Court No. 15, Ahmedabad as per the case of the petitioners had neither granted the request of the petitioners nor rejected the same and it was ordered to be consigned to file. The petitioners preferred Criminal Revision application No. 155/2000 before the Sessions Court at Ahmedabad and the Sessions court at Ahmedabad vide its order dated 27. 7. 2000 quashed and set aside the order of the learned Metropolitan Magistrate, Court No. 15, Ahmedabad dated 21. 7. 2000 and directed the Metropolitan Magistrate to decide the application afresh on merits. Again the petitioners appeared before the Trial Court on 29. 7. 2000 and requested the Trial Court to decide the application of the petitioners afresh and also requested to convert the non- bailable warrants into bailable Warrants. The Metropolitan Magistrate, Court No. 15, ahmedabad rejected the request of the petitioners on 28. 8. 2000. The petitioners preferred criminal Revision Application No. 177/2000 before the Sessions Court at Ahmedabad and the matter was remanded back on 26. 9. 2000. The remanded matter was considered and the request of the petitioners for issuance of bailable warrants in place of non-bailable warrants came to be rejected by the Trial Court vide its order dated 13. 10. 2000. The petitioners aggrieved of this order preferred Criminal Revision Application No. 514/2000 which came to be decided by the Additional Sessions Judge, Court No. 10, Ahmedabad, on 20. 10. 2000 and the same was rejected. Hence, this special criminal application. 10. 2000. The petitioners aggrieved of this order preferred Criminal Revision Application No. 514/2000 which came to be decided by the Additional Sessions Judge, Court No. 10, Ahmedabad, on 20. 10. 2000 and the same was rejected. Hence, this special criminal application. ( 6 ) LEARNED counsel for the petitioners contended that the learned Metropolitan magistrate, Court No. 15, Ahmedabad committed serious error and illegality in issuing non-bailable warrants against the petitioners. In support of her contention, she placed reliance on the decision of this Court in the case of Dipak Navnitlal Parikh and Ors. vs. State of Gujarat and Anr. , reported in 1995 (1) GLH (UJ) 25. She has then made reference to the provisions of Sec. 87 of the Criminal Procedure Code and contended that in the criminal case before the Magistrate, the petitioners were regularly appearing. This order passed for their non-bailable warrants deserves to be quashed and set aside. Lastly, it is contended that the police after making investigation on the complaint sent by the magistrate under Sec. 156 (3) of Crpc submitted a summary report and though cognizance has been taken by the Court only summons would have been issued to the petitioners or at the most, bailable warrants. ( 7 ) ON the other hand, learned counsel for the respondent supported the orders passed by the Court below. He submitted that the cognizance had been taken by the Metropolitan magistrate for the offences punishable under Sec. 302, read with Secs. 34, 201, 202 and 203 of IPC. This cognizance has been taken by the learned Magistrate, what Shri Samir dave learned APP submitted after holding an inquiry. In such cases, it is permissible to the Court to issue non-bailable warrants to the petitioners. It is a cognizable and non-bailable offence. Referring to the decision on which reliance is placed by the learned counsel for the petitioners, Shri Dave, learned APP submitted that it is not helpful to the petitioners and rightly it was held so by the learned Sessions Judge. Looking to the gravity of the offences only non-bailable warrants could have been issued and rightly the same has been issued, which order has not been interfered with by the learned Sessions Judge and the orders passed by the Courts below cannot be said to be perverse and this Court may not interfere in the matter under Art. 227 of the Constitution. ( 8 ) I have given my thoughtful consideration to the submissions made by the learned counsel for the parties. ( 9 ) IT is no more res Integra that the Magistrate is not bound by the report of the police submitted after making investigation under Sec. 173 (2) read with Sec. 175 (5) of Crpc. The Magistrate has all the powers and reference here may have to Sec. 202 of Criminal procedure Code, 1973 to inquire into the matter and if it is satisfied that sufficient material is there to take cognizance against the accused. He can take the cognizance. Reference here may have to the decision of the Apex Court in the case of State of maharashtra vs. Sharad Chandra Vinayak Dongze, reported in AIR 1995 SC 231 . The learned Metropolitan Magistrate, Court No. 15, Ahmedabad after receipt of the a summary report submitted by the police has made inquiry in this case under Sec. 202 of the Criminal Procedure Code and on being satisfied that there is sufficient material on the record available to take cognizance of the matter against the accused and accordingly cogniance has been taken. Next stage which comes for consideration of the Magistrate is to issue process and reference in this respect may have to the provisions of Sec. 204 of crpc. Section 204 of Crpc provides that if in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be a summons case, he shall issue summons for the attendance of the accused or where it is a warrant case, he may issue a warrant, or if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or if he has no jurisdiction himself some other Magistrate having jurisdiction. It is not in dispute that the offence for commission of which cognizance has been taken by the Magistrate against the accused petitioners is a warrant case. It is a discretion, no doubt, of the learned Magistrate even in a warrant case for causing the accused to be brought or to appear at a certain time before him, to issue summons but it is discretion and it is also true that it has to be exercised judiciously. It is a discretion, no doubt, of the learned Magistrate even in a warrant case for causing the accused to be brought or to appear at a certain time before him, to issue summons but it is discretion and it is also true that it has to be exercised judiciously. ( 10 ) STRONG reliance has been placed on provisions of Sec. 87 of Crpc, Sec. 87 of crpc provides that a Court may, in any case in which it is empowered by this Code it issue a summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest. This provisions on which reliance has been placed is of little help to the petitioners. In a summons case, if we go by the provisions of Sec. 204 of crpc, the learned Magistrate has no discretion or power except to issue summons for the attendance of the accused. However, in a warrant case, he may have discretion to issue warrant or if he thinks fit a summons for causing the accused to be brought or to appear at a certain time before him or if he has no jurisdiction himself before some other Magistrate having jurisdiction. In a case which falls under Clause (b) of Sub-sec. (1) of Sec. 204 of crpc it is difficult to accept the contention of the learned counsel for the petitioners that where the Magistrate decides to issue non-bailable warrants he has to record the reasons. Where only a summons can be issued for the attendance of the accused and the Court considers to issue a warrant for his arrest, it has to record the reasons. Section 87 of the crpc cannot be made applicable to the cases which fall under Clause (b) of Sub-sec. (1) of Sec. 204 of Crpc. Learned counsel for the petitioners has failed to show any authority of the Apex Court or any other High Court or this Court wherein it is laid down that in a case which falls under Clause (b) of Sub-sec. (1) of Sec. 204 of Crpc where Magistrate decides to issue a warrant for causing the accused to be brought or to appear at a certain time before him, the reasons are to be recorded. (1) of Sec. 204 of Crpc where Magistrate decides to issue a warrant for causing the accused to be brought or to appear at a certain time before him, the reasons are to be recorded. Learned Sessions Court has not committed any error or illegality in not making interference in the order of the learned metropolitan Magistrate, Court No. 15, Ahmedabad. It is a case where the Magistrate after holding an inquiry has taken the cognizance against the petitioners for the offence punishable under Sec. 302, read with Secs. 32, 201, 202 and 203 of IPC. All these offences are non-bailable and looking to the gravity of the offence coupled with the fact that these are non-bailable offences, the discretion exercised by the Magistrate to issue non-bailable warrant to the petitioners for causing them to be brought or to appear before him at a certain time is not perverse or arbitrary, which calls for the interference of the revisional Court and much more by this Court sitting under Art. 227 of the Constitution of india. The cognizance in the case has been taken by the learned Magistrate on 27th december, 1999. ( 11 ) THE petitioners very conveniently concealed very important fact in these proceedings. Though learned counsel for the petitioners stated that in the other matters filed before this Court, the petitioners have disclosed this fact but it is a fact on which she is not at variance that in this matter that fact has not been disclosed. Learned APP, Shri samir J. Dave Brought to the notice of this Court that after the Magistrate taking cognizance of the matter, the petitioners filed an application before this Court under Sec. 438 of Crpc for anticipatory bail and that application was dismissed as withdrawn on 20th January, 2000. Naturally when the petitioners having an apprehension of their arrest in this matter have approached to this Court and that application has been withdrawn. It was a very important and material fact which has to be disclosed. The jurisdiction of this court under Art. 227 of the Constitution is an extraordinary equitable jurisdiction where the conduct of the litigants is very very important. A litigant who has not candidly disclosed all the facts and more so where he concealed an important and relevant fact from this Court, only on this ground, the petition can be dismissed. Be that as it may. A litigant who has not candidly disclosed all the facts and more so where he concealed an important and relevant fact from this Court, only on this ground, the petition can be dismissed. Be that as it may. ( 12 ) OTHERWISE also, I do not find any merits in this special criminal application. Looking to the nature of the offence, the fact that a summary report has been submitted by the police has not been accepted by the Magistrate and after holding an inquiry, the Magistrate has taken the cognizance for the offence punishable under Sec. 302 read with Secs. 34, 201, 202 and 203 of IPC he was perfectly correct, justified and reasonable in his approach to issue non-bailable warrants against the petitioners to bring them before the Court. The Revisional Court has also not considered it to be a fit case where any interference has to be made and I fail to see any justification in the action of the petitioners to approach this Court. It is not a case where the order of the both the Courts below can be termed as a perverse or arbitrary. For issuance of non-bailable warrants against the petitioners, the learned Magistrate has all the powers under Sec. 204 of Crpc and he has rightly exercised the power. Moreover, it is a discretionary order in which where the revisional Court has not interfered with how it can be a case of interference of this Court under Art. 227 of the Constitution. Reliance placed on the decision of this Court is hardly of any help, substance and relevance to this case. Each case has to be decided on the basis of its own facts. There the cognizance has been taken for the offence committed under the Income Tax Act whereas here is a case where the offence committed and for which cognizance has been taken is under Sec. 302 and Secs. 34, 201, 202, 203 of IPC. Under Sec. 302 of IPC capital sentence has been provided or imprisonment for life. This offence under Secs. 302 and Secs. 34, 201, 202, 203 of IPC is also equally serious and a grave offence. ( 13 ) IN the result, this special criminal application fails and the same is dismissed. Notice discharged. Interim relief, if any, granted stands vacated. The petitioners are directed to pay costs of this petition to the State of Gujarat. 302 and Secs. 34, 201, 202, 203 of IPC is also equally serious and a grave offence. ( 13 ) IN the result, this special criminal application fails and the same is dismissed. Notice discharged. Interim relief, if any, granted stands vacated. The petitioners are directed to pay costs of this petition to the State of Gujarat. .