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2011 DIGILAW 160 (GUJ)

Devdas Babubhai Modi v. State of Gujarat

2011-03-04

SONIA GOKANI

body2011
Judgment Ms. Sonia Gokani, J.—The petitioner challenges the legality and propriety of the order dated 20th October, 2007 passed by the learned Judicial Magistrate First Class, Dhandhuka in Criminal Inquiry Case No. 53 of 2006 instituted pursuant to the private complaint lodged by Respondent No. 2 taking cognizance of offence punishable under Sections 406,420,114 and 120B of the Indian Penal Code against the present petitioner and two other family members of the petitioner. 2. The brief facts are needed to be capsulized hereunder:— 2.1 Respondent No. 2 in his private complaint alleged purchase of lands bearing Revenue Survey No. 519/B paiki and 522 paiki by registered sale deed on 18.6.1998 from the accused persons. It is further alleged that the accused misrepresented that the land is free from all encumbrances although the same was in possession of various tenants and a part of the said land was already disposed of by a registered sale deed, and, therefore, the complaint by Respondent No. 2 for the offence mentioned hereinbefore. 2.2 The private complaint lodged on 18.11.2006 before the learned J.M.F.C. Dhandhuka under Section 190(1)(a) of the Code of Criminal Procedure was examined by the learned Magistrate where the complainant - the present Respondent No. 2 was examined on oath on the very same day and the Court after considering the facts on record, postponed the issuance of process and got the inquiry conducted through the Police Sub-Inspector, Dhandhuka police station in exercise of powers conferred on him under Section 202 of the Code of Criminal Procedure. 2.3 Pursuant to the said order, as averred, a detailed inquiry was conducted by the Police Sub-Inspector recording statements of various persons and collecting documentary evidences, he consequently filed his report on 10.5.2007 to the Court of learned Magistrate, opining prima facie, from evidence of committal of offence under Section 420 of the Indian Penal Code by the present petitioners. 2.4 It is averred in this petition that Respondent No. 2 gave his further statement before the learned Magistrate on 5.7.2007 i.e. nearly two months after the report of the police urging to direct the investigation under Section 156(3) of the Code of Criminal Procedure and the learned Magistrate, allegedly, on misapplication of the judgments to the facts of the instant case, directed investigation under Section 156(3) of the Code of Criminal Procedure. Being aggrieved by the said order, the petitioner has preferred this petition under Section 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure on various grounds enumerated in the petition. 3. This Court has heard learned advocate Mr. Hariday Buch for the petitioners and learned APP Mr. Kartik Dave for the Respondent No. 1-State and learned advocate Mr. N.M.Kapadia for the Respondent No. 2. 4. It is vehemently contended by learned advocate Mr. Buch that it is impermissible for the learned Magistrate to put the clock back once having directed the inquiry under Section 202 of the Code of Criminal Procedure. According to the learned advocate the issue is res integra by the judgment of the Apex Court in the case of Jamuna Singh and others vs. Bhadai Shah reported in AIR 1964 SC 1541 . He also emphasized on the judgment of this Court in the case of Parshottambhai Karshanbhai Surani and others vs. Chandrikaben Karshanbhai Surani and another reported in 2008 (2) GLH 6 . It is answered emphatically in this judgment that after having taken cognizance of the offence by examining the complainant on oath and directing the police to investigate under Section 202 of the Code of Criminal Procedure, it is not legally permissible for the learned Judicial Magistrate to switch back to the pre-cognizance stage and direct inquiry under Section 156(3) of the Code. Difference between pre-cognizance stage and that of post-cognizance stage has also been made crystal clear according to the learned advocate and, therefore, the order needs to be quashed. 5. Learned APP appearing along with learned advocate for Respondent No. 2 have contended that challenge of this order is premature and there is a likelihood of this investigation resulting into summary proceedings as well. Present petitioner, who is an accused, has no business to say as to who should be investigating. 5. Learned APP appearing along with learned advocate for Respondent No. 2 have contended that challenge of this order is premature and there is a likelihood of this investigation resulting into summary proceedings as well. Present petitioner, who is an accused, has no business to say as to who should be investigating. It is also contended that even after the submission of the report of police investigation under Section 156(3) of the Code of Criminal Procedure, the police can submit report under Section 169 of the Code of Criminal Procedure and since the Magistrate has not issued any process till the date in view of Section 202 of the Code of Criminal Procedure, he has postponed issue of process against the accused and since there is no finality attached to the entire inquiry, Section 203 provides for dismissal of the complaint in absence of any sufficiency of grounds and unless the process is issued, the accused would have no right to participate in the proceedings. It is further stated that merely because the police inquiry is ordered under Section 202, it cannot be stated that the Magistrate has taken cognizance. It is emphasized that further investigation can be made even after once cognizance is taken and reliance is placed on the judgment of the Apex Court in the case of Ram Lal Narang vs. State (Delhi Admn.) and Om Prakash Narang and another vs. State (Delhi Admn.) reported in AIR 1979 SC 1791 . 6. Before adverting to the contentions of both the sides, it would be appropriate, at the outset, to recapitulate the law on the subject, as the facts revolve round the issue as to whether it is permissible for the learned Magistrate to direct investigation under Section 156(3) of the Code of Criminal Procedure once having examined the complainant on oath in a private complaint filed before it. 7. The Apex Court in the case of Ram Lal Narang vs. State (Delhi Admn.) (Supra) states as under:— “Notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigation is not exhausted and the police can exercise such right as often as necessary when fresh information comes to light. There was no provision in the Code of Criminal Procedure (1898) which, expressly or by necessary implication barred the right of the police to further investigate after cognizance of the case had been taken by the Magistrate. Neither Section 173 nor Section 190 lead to say that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permits repeated investigations on discovery of fresh facts.” This judgment will not apply to the facts of the instant case as nowhere it emerges that on account of the fresh informations having come to the fore, further investigation after the cognizance of the case is being contemplated. 8. The judgment of the Apex Court in the case of Jamuna Singh and others vs. Bhadai Shah reported in AIR 1964 SC 1541 clinches the issue, which states as follows: “9. In the case before us the Magistrate after receipt of Bhadai Shah’s complaint proceeded to examine him under Section 200 of the Code of Criminal Procedure. That section itself states that the Magistrate taking cognizance of an offence on a complaint shall at once examine the complainant and the witnesses present, if any, upon oath. This examination by the Magistrate under Section 200 of the Code of Criminal Procedure puts it beyond doubt that the Magistrate did take cognizance of the offences mentioned in the complaint. After completing such examination and recording the substance of it to writing as required by Section 200 the Magistrate could have issued process at once under Section 204 of the Code of Criminal Procedure or could have dismissed the complaint under Section 203 of the Code of Criminal Procedure. It was also open to him, before taking either of these courses, to take action under Section 202 of the Code of Criminal Procedure. That section empowers the Magistrate to “postpone the issue of process for compelling the attendance of persons complained against, and either enquire into the case himself or if he is a Magistrate other than a Magistrate of the third class, direct an enquiry or investigation to be made by any Magistrate subordinate to him, or by a police officer, or by such other person as he thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint”. If and when such investigation or inquiry is ordered the result of the investigation or inquiry has to be taken into consideration before the Magistrate takes any action under Section 203 of the Code of Criminal Procedure.” “It has to be noticed that the Magistrate was not bound to take cognizance of the offences on receipt of the complaint. He could have, without taking cognizance, directed an investigation of the case by the police under Section 156(3) of the Code of Criminal Procedure. Once however he took cognizance he could order investigation by the police only under Section 202 of the Code of Criminal Procedure and not under Section 156(3) of the Code of Criminal Procedure. As it is clear from the very fact that he took action under Section 200 of the Code of Criminal Procedure, that he had taken cognizance of the offences mentioned in the complaint, it was open to him to order investigation only under Section 202 of the Code of Criminal Procedure and not under Section 156(3) of the Code. It would be proper in these circumstances to hold that though the Magistrate used the words “ for instituting a case” in this order of November 22, 1956 he was actually taking action under Section 202 of the Code of Criminal Procedure, that being the only section under which he was in law entitled to act.” The Apex Court has also worded in its judgment by stating that the object of an investigation under Section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him. Under these circumstances what emerges is that Chapter XII deals with pre-cognizance stage and Chapter XV deals with post- cognizance stage. 9. Under these circumstances what emerges is that Chapter XII deals with pre-cognizance stage and Chapter XV deals with post- cognizance stage. 9. This has also been further supported by another judgment of the Apex Court in the case of Tula Ram vs. Kishor Singh reported in (1977) 4 SCC 459 laying down following principle:— “That a Magistrate can order investigation under Section 156(3) only at the pre-cognizance stage, that is to say, before taking cognizance under Sections 190,200 and 204 and where the Magistrate decides to take cognizance under the provisions of Chapter 14 he is not entitled in law to order any investigation under Section 156(3) though in cases not falling within the proviso to Section 202 he can order an investigation by the police which would be in the nature of an enquiry as contemplated by Section 202 of the Code.” 10. With the assistance of learned advocates of both the side, if one looks at the order dated 20.10.2007 passed below Exh.1 in Criminal Inquiry Case No. 53 of 2006, it categorically mentions order of inquiry under Section 202 of the Code of Criminal Procedure passed by the predecessor of the learned Magistrate with further mentioning of opinion of the police, received by an outward No. 861 of 2007, which was also substantiated by the documentary evidence as well as the statements recorded of numerous persons. The Court also has opined that there appears to be a prima facie offence occurring involving the present petitioner and the accused No. 1 Devdas Babubhai Modi. The Court’s decision appears to have been actuated by the fact that no arrest is made of the accused although, prima facie, the offence under Section 420 of the Indian Penal Code has been made and, therefore, it has chosen to order investigation under Section 156(3) of the Code of Criminal Procedure. 11. From the sequence of events of filing of the complaint on 18.11.2006 and verification recorded by the learned Judicial Magistrate First Class of Dhandhuka Court and the Court on having found that the issues involved in the complaint were of a serious nature and require substantiation from the documentary evidence and that further inquiry would be necessitated under Section 202 of the Code of Criminal Procedure, directed the Police Sub-Inspector Dhandhuka police station to complete the inquiry within 60 days and submit his report. 12. 12. Under these circumstances, the present petitioner and the original accused have made out a clear case of setting aside the order of trial Court, who has apparently misinterpreted the provisions contained in the Code, specially of Section 156(3) of the Code. After having directed the inquiry under Section 202 as discussed hereinabove, he ought not to have put the clock back by reverting to the pre-cognizance stage and, therefore, the order needs to be quashed. 13. The possibility as contended by the other side cannot be ruled out of a further inquiry also resulting into the dismissal of complaint as contemplated under the Code of Criminal Procedure. However, that may not permit the learned Magistrate to pass an order which is not permissible under the law and in this premise the following order needs to be passed:— The order passed by learned Magistrate, Dhandhuka dated 20.10.2007 in Criminal Inquiry Case No. 53 of 2006 is hereby quashed and set aside. It would be open to the Court of learned Judicial Magistrate First Class to independently apply its mind as regards the requirement of further and other documents to proceed further in the Criminal Inquiry Case No. 53 of 2006. 14. Needless to say that the reasonings mentioned hereinabove, or the opinions expressed are for a limited purpose of deciding the present petition and all these issues shall be open for both the sides to contend and none of the observations shall come in the way of the trial Court in deciding the same independently in the pending criminal inquiry, which shall be expeditiously taken up as much time has lapsed in the present proceedings. Ad interim relief granted earlier stands vacated. Rule is made absolute accordingly, no order as to costs.