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2009 DIGILAW 110 (GUJ)

Anupam N. Chaudhary v. State of Gujarat

2009-02-20

D.H.WAGHELA

body2009
Judgment D.H. Waghela, J.—Rule of which notice is waived for the respondents. 1. The petitioner, an advocate, has, invoking Section 482 of Cr.P.C., sought quashing of the complaint registered as Criminal Case No. 8 of 2007 along with order dated 11.9.2007 made therein to issue process. The original complainant, a client of the petitioner and Respondent No. 2 herein, has alleged offences punishable under sections 504, 506 (2) and 418 of IPC in the complaint dated 12.1.2007 wherein investigation by police was ordered under Section 202 of Cr.P.C. on 16.1.2007. After considering the police report, order dated 23.7.2007 was made to register the complaint and issue process for the offences punishable under sections 504 and 418 of IPC. The petitioner assailed registration of the complaint as a criminal case and the order to issue process mainly on the ground that orders dated 16.1.2007 and 23.7.2007 were made without recording statement of the complainant on oath as required under the provisions of Section 200 of Cr.P.C. Learned Counsel for the petitioner relied upon judgment of this Court in Shankerbhai Mathurbhai Patel vs. Ramanlal Vrajlal Patel, [ 1991 (1) GLR 387 ] to submit that learned Magistrate had no jurisdiction to direct the police to make an inquiry under Section 202 of Cr.P.C. and the process issued on receiving report from the police on the complainant was also required to be quashed and set aside. 2. There is no dispute about the fact that while entertaining the complaint and taking cognizance of the offence for the purpose of proceeding under Chapter XV of Cr.P.C., the basic requirement of examining the complainant on oath was not fulfilled and hence the summons issued to the petitioner was liable to be set aside. However, as discussed in detail in Special Criminal Application No. 53 of 2009, recently decided by this Court, the matter was required to be remanded to the trial court for expeditiously deciding the matter afresh, following recent judgment of the Supreme Court dated 23.9.2008 in Ketankumar Babulal Patel vs. Kesarben Jesangji, [2008 SCC L.Com 1240]. Since it could not be said that the complaint itself did not disclose any offence the complaint itself could not be quashed and hence the petition is partly allowed with the direction that the summons issued to the petitioner on the basis of the orders dated 16.1.2007 and 11.9.2007 are set aside. Since it could not be said that the complaint itself did not disclose any offence the complaint itself could not be quashed and hence the petition is partly allowed with the direction that the summons issued to the petitioner on the basis of the orders dated 16.1.2007 and 11.9.2007 are set aside. In the peculiar facts and circumstances and in the interest of justice, it would be open for learned magistrate to examine the complainant on oath and then order fresh investigation or adopt the report of investigation already carried out by the police for the purpose of proceeding further under Section 203 or 204 of Cr.P.C. after application of mind afresh and in accordance with law. Rule is made absolute accordingly with no order as to costs.