S. R. BRAHMBHATT, J. ( 1 ) RULE. Shri Malulik Nanavati, learned Additional Public Prosecutor appearing for the respondent Nos. 1 and 2 and Shri Arpit A. Kapadia, learned Advocate appearing for respondent No. 3 waives service of rule. Rule is fixed forthwith at the request of learned Advocates for the parties. ( 2 ) THE petitioner, informant in crime Register No. 1-5 of 2010 registered with CID Crime (Economic cell) Gandhinagar, has approached this court under Article 226 of the constitution of India challenging the order dated 16th April,2010 passed by the Learned Chief Metropolitan magistrate, Ahmedabad, acting upon the report submitted by the respondent no. 2 under Section 169 of the Code of criminal Procedure, 1973 and ordering release of the respondent No. 3 on furnishing bail of Rs. 25,000/- with one solvent surety and personal bond of like amount with a condition that as and when his presence is required before the Court, then he will have to remain present before the Court. This order was made on 16th April,2010 below exh. I in Summary Case No. 01/2010 in respect of Crime Register No. 5/2010 registered with CID Crime (Economic cell) Gandhinagar, on the ground that the order is passed without jurisdiction and in a situation, which would not justify passing of the order and hence the same be quashed and set aside by issuing writ of certiorari or any other appropriate writ or order and has also prayed that the impugned order be stayed during pendency of the petition. ( 3 ) FACTS in brief leading to filing of this petition deserve to be set out as under for the sake of convenience. ( 4 ) THE petitioner, as it is stated in the petition happens to be an employee of a Company known as "gaekwad investment Corporation Private limited", the said Company owned land bearing survey No. 49/3, final plot no. 113 of Town Planning Scheme no. 2 of Village Thaltej of District ahmedabad, admeasuring 1 10105 sq. mtrs. On 18th July, 1991, a power of attorney was given by the Company to one person, who has been named as an accused No. 1 in the complaint. The said power of attorney was given for limited purpose of obtaining clearance permission etc. from the Competent authority under the various acts including Urban Land Ceiling Act etc. mtrs. On 18th July, 1991, a power of attorney was given by the Company to one person, who has been named as an accused No. 1 in the complaint. The said power of attorney was given for limited purpose of obtaining clearance permission etc. from the Competent authority under the various acts including Urban Land Ceiling Act etc. The power of attorney got interpolated so as to confer power upon the accused no. 1 to sell the land in question. The letter was addressed to the accused no. 1 instructing him not to act on the basis of power of attorney and subsequently on 1. 12. 1994, the same came to be revoked. In the meantime, the accused No. 1 did not inform that on the basis of the power of attorney, any agreement for sale had been executed. In fact it was noticed that an agreement for sale, executed on the basis of the power of attorney by the said accused, no mention was made despite there being correspondence in the year of 1994 to 1998 between the parties. The petitioner further mentioned in his petition that there were some correspondence containing allegations against each other and the agreement to sale was also concocted as per the say of the petitioner, which was dated 26th august, 1991 and based there upon, a civil suit came to be instituted being civil Suit No. 242 of 1998 for specific performance. Though, no interim relief was granted, the present respondent no. 3 on 24. 12. 2007 in the said suit, gave evidence under the power of attorney of one Shri Jayesh Dave that was on the strength of power of attorney dated 5. 3. 2009. The suit was decreed on 24. 12. 2007. The said decree and judgment came to be assailed in first Appeal No. 201 of 2008 by the company. As per the say of the complainant, Division Bench of this court allowed the said appeal vide its order dated 30th June, 2008. The judgment and decree of the Trial Court has been set aside. The matter was remanded to the Trial Court with a direction to dispose of the suit in accordance with law after recording evidence of the parties. This Court observed that no satisfactory reasoning were assigned by the learned Trial judge for disposing of the suit. The said suit is still pending on its remand. The matter was remanded to the Trial Court with a direction to dispose of the suit in accordance with law after recording evidence of the parties. This Court observed that no satisfactory reasoning were assigned by the learned Trial judge for disposing of the suit. The said suit is still pending on its remand. The petitioner lodged complaint alleging forgery of seven documents especially forgery of power of attorney dated 18. 7. 1991, agreement for sale dated 26. 8. 1991 and letter dated 23. 9. 1997. The said complaint came to be registered as Inquiry Case No. 41 of 2008 by the CID crime (Economic cell), Gandhinagar Police Station, gandhinagar and during pendency of the said investigation, an application came to be filed in the suit for custody of the original documents for the purpose of opinion of handwriting expert. The Court vide its order dated 12. 11. 2009, the documents were handed over to the Investigating Officer as it is mentioned in the petition, the documents were referred to the FSL vide communication dated 29. 12. 2009, the FSL opined that the signature in the letter dated 23rd September, 1997 was not genuine and it was opined to be synthetic signature. The order of Trial court dated 12. 11. 2009 came to be challenged by way of filing Special civil Application No. 1243 of 2009, but the same came to be withdrawn later on. On the basis of this report and the preliminary investigation-inquiry, the concerned officer thought it fit to take out appropriate proceedings as the additional Director General of Police was consulted, who approved the filing of first information report, whereon the fir came to be registered being Crime register No. 5 of 2010 and the investigation commenced. The respondent No. 3 came to be arrested on 17th March, 2010 and as the investigation could not be completed within 24 hours, the Learned Chief metropolitan Magistrate, Ahmedabad on the production of the accused No. 3, remanded him to judicial custody in absence of any request for remand. The accused No. 3 moved bail application before the Learned Chief Metropolitan magistrate, Ahmedabad, but, however, in view of the allegation of forgery, the same came to be withdrawn. The bail application came to be preferred being criminal Misc. Application No. 947 of 2010 in the Court of Sessions Judge, ahmedabad. The said bail application was fixed for hearing. The accused No. 3 moved bail application before the Learned Chief Metropolitan magistrate, Ahmedabad, but, however, in view of the allegation of forgery, the same came to be withdrawn. The bail application came to be preferred being criminal Misc. Application No. 947 of 2010 in the Court of Sessions Judge, ahmedabad. The said bail application was fixed for hearing. As Some allegations were made against the investigating Officer, he was changed and the investigation came to be entrusted to Respondent No. 2 as per the information of the petitioner, it came to be entrusted upon respondent No. 2 only on 29th March,2010. When the bail application of the respondent No. 3 came up for hearing before the Sessions court on 1. 4. 2010, the respondent No. 2 sought time stating that he had not been able to go through the investigation papers and, therefore, the matter was adjourned to 5. 4. 2010. The petitioner has made averments on Page-10 of the petition that the Investigating Officer on 2nd April, 2010, despite being holiday, prepared report proposing filing of "c" Summary under Section 173 of the Code of Criminal Procedure and submitted it for approval of the additional Director General of Police. As per the information of the petitioner, the said came to be approved on 4. 4. 2010 i. e. Sunday, the Investigating officer prepared the report under section 173 and Section 169 of the code of Criminal Procedure. The petitioner has alleged in the petition that on 5th April, 2010, prior to the said report being submitted to the Learned chief Metropolitan Magistrate, ahmedabad, Investigating Officer declared before the Sessions Court, ahmedabad at 11:00 A. M. on 5. 4. 2010 that report under Section 169 has been filed and prayed before the Sessions court at Ahmedabad that the accused be released in view of the said report under Section 169 of the Code of criminal Procedure. The petitioner made necessary inquiries and came to know that the report was not filed at 11:00 A. M. , but was in fact filed at 12:30, this fact was pointed out to the learned Sessions Judge who defer the hearing of the bail application to 6. 4. 2010 and ultimately came to be adjourned to 7. 4. 2010. The Learned sessions Judge on 7. 4. 2010 heard the application and rejected the same vide its order dated 8. 4. 2010. 4. 2010 and ultimately came to be adjourned to 7. 4. 2010. The Learned sessions Judge on 7. 4. 2010 heard the application and rejected the same vide its order dated 8. 4. 2010. Copy of the same is placed on the record of this petition. The bail application of the respondent No. 3 being Criminal Misc. Application No. 947 of 2010, thus came to be rejected. Ultimately on 8. 4. 2010 as per the information and averments made in the petition, respondent No. 3 has preferred Criminal Misc. Application No. 3697 of 2010 in this court for bail, which is pending for hearing. As it is stated by the petitioner, the request of the Investigating Officer under Section 169 and the report under section 173 were taken up for orders. The petitioner filed an affidavit in the form of protest petition. Copy of the same is placed on record of this Court. The Learned Magistrate, as per the say of the petitioner, took up hearing of section 169 and deferred the orders on report under Section 173. The petitioner's Advocate prayed before the court that the order needs to be passed simultaneously on both the reports. However, as per the say of the petitioner, the report under Section 169 was taken up for hearing first. The court ultimately passed the order, which is impugned in this petition under Article 226 of the Constitution of india. ( 5 ) LEARNED Counsel appearing for the petitioner contended that looking to the averments made in the memo of the petition in Paragraph-22, the involvement and role of respondent no. 3 surfaces in the offence alleged and registered. He has further submitted that the Learned Magistrate failed in appreciating the fact that document at exh. 162 in Special Civil Suit No. 242 of 1998, purporting to be letter written by the Company to Shri Kantilal Ambalal patel is also forged and fabricated document. The Learned Magistrate ought to have appreciated the fact that the opinion of the handwriting expert conclusively go to show the involvement of the present respondent no. 3. 162 in Special Civil Suit No. 242 of 1998, purporting to be letter written by the Company to Shri Kantilal Ambalal patel is also forged and fabricated document. The Learned Magistrate ought to have appreciated the fact that the opinion of the handwriting expert conclusively go to show the involvement of the present respondent no. 3. It was erroneous to say that as the document was forming part of the Court record and no criminal proceedings could be permitted under Section 340 of Code of Criminal Procedure, in view of the observation made by the apex court in case of Iqbal Singh Marwah vs. Meenakshi Marwah reported in 2005 Cri. L. J. 2161 The fetter which is thought to be fetter is no more of fetter as the purport of the documents, the date of the documents and other things would go clearly to show that the investigating Officer was not done his duty, the way he should done. The learned Counsel for the petitioner further submitted that the Learned magistrate ought to have appreciated the fact that the Division Bench of this court has in terms deprecated the mode of disposing of the suit by the Civil court in the proceedings of First appeal preferred by the complainant. By way of amendment Ground 25 (A)to 25 (E) have been taken in respect of the palpable irregularities noticed in disposing of the proceedings under section 169 firstly and deferring the proceedings under Section 173 of the code of Criminal Procedure. The learned Counsel of the petitioner invited this Court's attention to the scheme of the act and submitted that the scheme of the act did not permit such a recourse to the Investigating Officer especially when the respondent No. 3 had already been forwarded to the learned Magistrate, who in turn had remanded him to the judicial custody as no remand was sought at the relevant time and who has been declared to be not involved in any offense by investigating Officer on erroneous finding and belief and applicability of the principle of law, which are not applicable to the case at all and, hence, the entire proceedings smacks of malatide and unholy haste on the part of the Investigating Officer. Learned counsel for the petitioner further submitted that the powers are vested on the concerned in charge police officer of the station for releasing the accused on personal bond during the investigation, when it appears to him that there are no sufficient reasons and ground indicative of accused being involved in non-bailable offence. The said power, therefore, cannot be read in the proceedings that have been undertaken under Section 173, when on the culmination of investigation, the investigating Officer is filing his report as provided under Code Cr. P. C. ( 6 ) LEARNED Counsel for the petitioner further submitted that the learned Magistrate ought to have appreciated the fact that the Sessions court namely the Competent Court in exercising power under Section 439 of cr. P. C. for granting bail, had not been impressed by the factum of filing of "c" Summary, which was in fact informed by the Investigating Officer right at 11:00 O' clock, than the Learned magistrate could not have exercise section 169 power, which are admittedly not powers available to magistrate for releasing the accused, especially so when the superior Court had rejected the bail application, meaning thereby the factum of filing of "c" Summary was not considered so great circumstances as to warrant releasing of the accused on bail by the sessions Court, then the Learned magistrate Court without any change of circumstances and without applying its mind to the report under Section 173 could not have exercise the power, which ex-facie were not inuring in it, on the plain reading of Section 169 of the Code of Criminal Procedure. ( 7 ) THE Learned Counsel for the petitioner submitted that the specific contention to this effect was raised by the Learned Advocate, who appeared on behalf of the complainant before the learned Metropolitan Magistrate. Unfortunately, the same has not been dealt with as could be seen from the order impugned in this petition. In view of this, the order impugned being Per -se illegal. without jurisdiction and, therefore, nullity in the eye of law, required to be quashed and set aside and the petition deserves to be allowed. The learned Counsel for the petitioner relying upon decision of the Apex Cort in case of Brij Nandan Jaiswal Vs. Munna Alias Munna Jaiswal and Anr. without jurisdiction and, therefore, nullity in the eye of law, required to be quashed and set aside and the petition deserves to be allowed. The learned Counsel for the petitioner relying upon decision of the Apex Cort in case of Brij Nandan Jaiswal Vs. Munna Alias Munna Jaiswal and Anr. , reported in (2009) 1 SCC 678 submitted that the complainant can always questioned the order granting bail, if the said order is not validly passed. It is not as if once a bail is granted by any court, the only way is to cancel on account of its misuse, orders granting bail could be assailed on merits and court may examine its sustainability on merits. ( 8 ) LEARNED Additional Public prosecutor appearing for the respondent No. 1 and 2 contended that the established practice indicates that, though strictly speaking as per the letter' of the law in form of Section 169 would not indicate that the Court has any power 10 release the accused on execution of bond, but the said Section clearly envisages releasing of accused pending investigation, when during the course of investigation, Investigating officer comes to form an opinion that no evidence or ground appears to be available for forwarding the accused to the Magistrate for trial. Now if that power is not with the Investigating officer and when on the culmination of the investigation, a report is filed in form of "c" Summary, then the Police officer well within his stead in making request to the Court for releasing the accused by exercising the power under section 169 of the Code of Criminal procedure, which is otherwise exercised by the Police Officer in charge of Investigation. Learned additional Public Prosecutor contended that the practice of filing such final report and the request to the learned Magistrate for exercising power under Section 169 is developed over the years and it has been duly taken note of by various Courts including this Court as could be seen from the decision of this Court in case of State of Gujarat Vs. Shah lakhamshi Amarsinh reported in 1966 (7), GLR, 130, wherein the full bench of this Court was faced with the question as to whether the Magistrate has power to direct the Investigating officer to file charge-sheet when investigating Officer has filed its report of no evidence under Section 169. Shah lakhamshi Amarsinh reported in 1966 (7), GLR, 130, wherein the full bench of this Court was faced with the question as to whether the Magistrate has power to direct the Investigating officer to file charge-sheet when investigating Officer has filed its report of no evidence under Section 169. Reference was made in view of two opposite views of Bombay High Court and Kolkatta High Court as discussed therein. ( 9 ) LEARNED Additional Public prosecutor also, relying upon decision in case of Abhinandan Jha Vs. Dinesh mishra reported in AIR 1986 SC117 in support of his submissions that police submit report under Section 169, is not so alien as sought to be made out by the complainant and their Counsel. The apex Court has also observed and taken note that in that case, once police submitted report under Section 169, that no case was made out for sending up accused for trial. The Magistrate had no power to call upon police to submit charge-sheet. Learned Additional public Prosecutor also relying upon decision of the Apex Court in case of m. C. Mehta (Taj Corridor Scam) v. Union Of India And Others, reported in (2007)JSCC 110 and submitted that the Court has referring to the ratio laid down in case of Abhinandan Jha (Supra) in terms referred to the purport of Section 169 or under Section 170 of code of Criminal Procedure, which: would certainly not go to support the contention canvassed on behalf of the complainant that Section 169 powers and its exercise by Magistrate is alien to the Criminal jurisprudence. ( 10 ) LEARNED A. P. P. submitted that the plain reading of the Section as they are in the Code of Criminal Procedure are capable of being interpreted that the power of Section 169 is with the investigating officer only and magistrate does not have that power, but looking to the development of practice over the years and the procedure adopted by Investigating officers as well as the provisions of gujarat Police Manual 1975, one can say that the police and investigating officer are well within their discretion to recommend release of the accused, when they come to conclusion based upon the investigation that the accused does not seem to be involved in non bailable offense. Thus even at the time of conclusion of the investigation, when summary is requested and accused is no more required in custody and he be requested to be released under Section 169 of Code of Criminal Procedure. Learned Additional Public Prosecutor further submitted that the order impugned in this proceedings strictly speaking, cannot be said to be an order made only under Section 169, but without prejudice to whatever stated and submitted by him herein above, that Investigating Officer as well as police have legitimate entitlement to recommend the release of accused, even under Section 169 in alternative, he submitted that the order and the operative part of the order impugned go to show that the Court has really exercised power under Section 437 of the Code of Criminal Procedure, it can well be said that there is no embargo upon Learned Magistrate to release the accused during or at any stage of the trial, inquiry provided the terms and conditions mentioned therein are fulfilled. ( 11 ) LEARNED Counsel appearing for the respondent No. 3 submitted that this court while examining the challenge to order impugned in this petition, may look into report under Section 173 and the background, in which the complaint came to be filed so as to see the culpability aspect while appreciating the justification in the order of releasing the respondent No. 3 on bail. ( 12 ) LEARNED Counsel appearing for the respondent No. 3 invited this Court's attention to averments made in the affidavit and contended that there was a preliminary objection in preferring this proceedings as strictly speaking the writ petition could not be maintainable for challenging the order of Learned magistrate, which is impugned in this petition and the only remedy is remedy under Section 397 of the Code of criminal Procedure. When alternative remedy is provided, this Court may not exercise its jurisdiction under Article 226 of the Constitution of India. In support of his submissions, he relied upon decision of the Apex Court in case of State of H. P. Vs. Prithi Chand reported in (1996) JSCC, 37 and submitted that in case of remedy available under Section 482, writ petition would not be maintained. ( 13 ) RELYING upon decision in case of Mathew Areeparmatil and Ors. Vs. State of Bihar and Ors. Prithi Chand reported in (1996) JSCC, 37 and submitted that in case of remedy available under Section 482, writ petition would not be maintained. ( 13 ) RELYING upon decision in case of Mathew Areeparmatil and Ors. Vs. State of Bihar and Ors. , reported in (1985) JSCC, 102, submitted that the accused, when no action is taken for three years on FIR is required to be released forthwith under Section 169 of code of Criminal Procedure. One more decision of the Apex Court in case of ravikant Bhagoji Dhumal and Ors. Vs. State of Maharashtra, reported in 1991 supp (1) JSCC, 385 is relied upon by learned Counsel for the respondent no. 3 in support of his submissions that exercise of the powers by the magistrate under Section 169 is not uncommon and is taken note of by the court, as could be seen from the discretion in Paragraph-11 of the said judgment, wherein the Court has observed that Magistrate, accepting report under Section 169 would not amount to acquitting the accused so released. ( 14 ) LEARNED Counsel appearing for the respondent No. 3 red out a paragraph and observation of this Court in case of aamer Yunus Bhavnagri Vs. State of gujarat, reported in 2003 (1) GCD 251 (Guj) in respect of police filing report under Section 169 of the Code of criminal Procedure and praying discharge of the accused and this Court deprecating the conduct of the police officer, in view of the reasons mentioned thereunder and submitted that the observations have not been approved by the Apex Court in case of satish Sharma and Anr. Vs. State of gujarat, reported in 2003 (1) G. L. H, 353, wherein the Apex Court has observed in Paragraph-3 that investigating agency filing a report under Section 169 of the Code of criminal Procedure cannot be said to be an interference with administration of justice. Learned Counsel appearing for the respondent No. 3 relied upon the decision in case of Abdul Razak abdul Gani Dunge Vs. State of maharashtra and Ors. , reported in 2008 cri. L. J. , 133 in support of his submissions that filing of report under section 169 is not an uncommon phenomenal. Learned Counsel appearing for the respondent No. 3 relied upon the decision in case of Abdul Razak abdul Gani Dunge Vs. State of maharashtra and Ors. , reported in 2008 cri. L. J. , 133 in support of his submissions that filing of report under section 169 is not an uncommon phenomenal. Learned Counsel appearing for the respondent No. 3 also relied upon decision of the Apex Court in case of Abhinandan Jha (Supra)and another decision of the Apex Court in case of R. Sarala Vs. T. S. Velu and ors. , reported in (2000) 4 SCC, 459 and submitted that the Apex Court after taking into consideration the scheme of the act, came to the conclusion that the high Court was not justified in directing the final report to be taken back into filing a fresh report incorporating the opinion of public prosecutor. The learned Counsel for the respondent No. 3 also relied upon the observation of the Apex Court in case of M. C. Mehta (Taj Corridor) in support of his submissions for the order being passed under Section 169 of the code of Criminal Procedure. ( 15 ) LEARNED Counsel appearing for the respondent No. 3, thereafter, contended on merits of the matter and submitted that the CID Crime had: requested 16 original documents from civil Court for sending them to FSL, which as permitted by the Concerned court vide its order dated 12. 11. 2009 and as per the case of the prosecution in the FIR, one document i. e. Exh. 162 is forged and in that case also, it is stated that the signature on the said document is synthetic signature. It was further contended that the said document at exh. 162 is produced by the accused no. 1 i. e. other then the present respondent No. 3 in the proceedings of special Civil Suit No. 248 of 1998 and, therefore, no role could be said to have been attributed to the present respondent No. 3. The fact with regard to obtaining 16 documents and opinion with regard to only one being forged and silence with regard to remaining 15 documents also required to be viewed in its proper perspective. Learned counsel for the respondent No. 3, while commenting upon the said document at exh. 162 submitted that the said was photocopy and not original. In fact much reliance was placed upon it. Learned counsel for the respondent No. 3, while commenting upon the said document at exh. 162 submitted that the said was photocopy and not original. In fact much reliance was placed upon it. documents, when the decree came to passed in Special Civil Suit No. 242 of 1998 on 24. 12. 2007 and, therefore, division Bench of this Court vide its order dated 30th June, 2008 passed in first Appeal No. 201 of 2008 with First appeal No. 2118 of 2008, remanded the matter back to the Trial Court. ( 16 ) LEARNED Counsel further submitted that as the FSL report was brought in an open paper and not in a sealed envelope, no reliance could be placed there upon. The learned Counsel drew this Court's attention to the various transaction entered, into by the complainant with various, persons as averred in the memo of the petition and submitted that in fact this complainant is indulging in dubious activities in respect of said peace of land and looking to the contents of the Civil Suit and the development thereafter, would go to show that the matter does not fall under the purview of criminal law , no criminal activity can be attributed and "c" Summary is therefore filed by the investigating Officer, which has been taken note of and the accused is released on bail, pending consideration thereon.