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2012 DIGILAW 78 (GUJ)

RAMANBHAI ZANZARBHAI GHANGHAR v. STATE OF GUJARAT

2012-02-02

M.R.SHAH

body2012
JUDGMENT [1.0] Present Special Criminal Application under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) has been preferred by the petitioner herein – original complainant to quash and set aside the impugned orders dated 20.11.2008 and 30.06.2010 passed by the learned Metropolitan Magistrate, Court No.15, Ahmedabad in Inquiry Case No.34/2008 as well as the order dated 13.01.2011 passed by the learned Additional Principal Judge, City Sessions Court, Ahmedabad in Criminal Revision Application No.366/2010. [2.0] Facts leading to filing of the present petition in nut-shell are as under: [2.1] Petitioner herein – original complainant filed one complaint being Inquiry Case No.34/2008 against the original accused in the Court of learned Metropolitan Magistrate, Court No.15, Ahmedabad for the offences punishable under Sections 465, 467, 468, 471, 34 and 114 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”). It appears that without recording verification of the petitioner – original complainant on oath and without following any procedure as required under Section 200 of the CrPC, learned Metropolitan Magistrate passed an order dated 20.11.2008 directing to hold police inquiry under Section 202 of the CrPC. It appears that thereafter the concerned police officer submitted the report before the learned Magistrate which was objected by the petitioner – original complainant and the learned Magistrate by order dated 30.06.2010 dismissed the said complaint under Section 203 of the CrPC solely on the ground that there would be a bar of taking cognizance under Section 195(1)(b)(ii) of the CrPC, considering the fact that the allegations are with respect to forging document which was produced before the Court. Being aggrieved and dissatisfied with the order passed by the learned Metropolitan Magistrate Court No.15, Ahmedabad dated 30.06.2010 in dismissing the said complaint / inquiry case No.34/2008 under Section 203 of the CrPC, the petitioner – original complainant preferred Criminal Revision Application before the learned City Sessions Court, Ahmedabad being Criminal Revision Application No.366/2010 mainly submitting that as the document was not forged after the same was produced before the Court but the document was forged first and thereafter the same was produced in the Court and therefore, bar under Section 195(1)(b)(ii) of the CrPC would not be applicable. That the learned Additional Principal Judge, City Sessions Court, Ahmedabad by impugned judgment and order dated 13.01.2011 not only dismissed the said Revision Application but also observed that as, before ordering inquiry under Section 202 of the CrPC, the complainant was not examined on oath, the complaint itself is not maintainable and therefore, consequently upholding the order passed by the learned Magistrate dismissed the complaint under Section 203 of the CrPC. Being aggrieved and dissatisfied with the original order passed by the learned Magistrate directing police inquiry under Section 202 of the CrPC without following procedure as required under Section 200, meaning thereby recording verification of the complainant on oath, as well as the order passed by the learned Magistrate dismissing the complaint under Section 203 of the CrPC and the impugned judgment and order passed by the learned Revisional Court dismissing the said Revision Application and confirming the order passed by the learned Magistrate dismissing the complaint, the petitioner – original complainant has preferred the present Special Criminal Application under Article 227 of the Constitution of India read with Section 482 of the CrPC. [3.0] Shri Hardik Dave, learned advocate appearing on behalf of the petitioner – original complainant has vehemently submitted that both the Courts below have materially erred in observing that there would be a bar of taking cognizance of the offence under Section 195(1)(b)(ii) of the CrPC. It is submitted that in the present case as such the allegation in the complaint was that the forged document was produced before the Court and it was never the case on behalf of the complainant that after the document was produced before the Court, the same was forged. Therefore, it is submitted that as held by the Hon'ble Supreme Court in the case of Sachida Nand Singh v. State of Bihar reported in (1998) 2 SCC 493 as well as another decision of the Hon'ble Supreme Court in the case of Iqbal Singh Marwah and Anr. v. Meenakshi Marwah and Anr. reported in 2005 (2) GLH 413, in such a case bar under Section 195(1)(b)(ii) of the CrPC would not be attracted. v. Meenakshi Marwah and Anr. reported in 2005 (2) GLH 413, in such a case bar under Section 195(1)(b)(ii) of the CrPC would not be attracted. [3.1] It is further submitted by Shri Dave, learned advocate appearing on behalf of the petitioner that even the learned Revisional Court has materially erred in observing that as the complainant was not examined on oath and his verification was not recorded on oath, the complaint as a whole was required to be dismissed and consequently has materially erred in confirming the order passed by the learned Magistrate on the aforesaid ground. It is submitted that as held by this Hon'ble Court in the case of Anupam N. Chaudhary v. State of Gujarat reported in 2009 JX (Guj) 45 : 2009 GLHEL_HC 221025 as well as the decision of the Bombay High Court in the case of M/s. Nova Electricals, Jalgaon v. State of Maharashtra and Anr. reported in 2007 Cri.L.J. 535, omission by Court to record verification and/or examining the complainant on oath, at the most can be said to be an irregularity and the same can be cured subsequently. However, on the aforesaid ground the complaint disclosing prima facie case cannot be dismissed. It is submitted that at the most if the Court has taken cognizance and process is issued on the complaint without recording the verification of the complainant, the order of issuing process can be quashed and set aside and the matter can be remanded to the learned Magistrate for completing the procedure as required under Section 200 of the CrPC and record the verification of the complainant on oath and thereafter proceed further with the complaint in accordance with law and on merits. Therefore, it is submitted that the learned Revisional Court has materially erred in observing that as the complainant was not examined on oath and the verification of the complainant was not recorded, the complaint was required to be dismissed. Therefore, it is requested to allow the present petition and grant the reliefs as prayed for. Therefore, it is submitted that the learned Revisional Court has materially erred in observing that as the complainant was not examined on oath and the verification of the complainant was not recorded, the complaint was required to be dismissed. Therefore, it is requested to allow the present petition and grant the reliefs as prayed for. [4.0] Shri L.B. Dabhi, learned Additional Public Prosecutor appearing on behalf of the State is also not in a position to dispute that even in a case where the learned Magistrate has taken cognizance of the offence without recording the verification of complainant on oath as required under Section 200 of the CrPC, the complaint cannot be quashed on that ground and at the most the order issuing process can be quashed and set aside. Therefore, it is requested to pass appropriate order considering the facts and circumstances of the case. [5.0] Heard learned advocates appearing for respective parties at length. At the outset it is required to be noted that the petitioner herein – original complainant had instituted / filed the private complaint against the accused persons under Section 190 of the CrPC for the offences punishable under Sections 465, 467, 468, 471, 34 and 114 of the IPC alleging inter-alia that the accused persons have produced one agreement dated 21.06.1993 which is forged one and the same is used as true despite having knowledge that the same is forged one. Therefore, the allegations in the complaint are that the document was forged before the same was produced in the Court. The learned Magistrate has dismissed the complaint under Section 203 of the CrPC mainly on the ground that there would be a bar of taking cognizance of the offence as provided under Section 195(1)(b)(ii) of the CrPC. [5.1] Identical question came to be considered by the Hon'ble Supreme Court in the case of Sachida Nand Singh (Supra) as well as in the case of Iqbal Singh Marwah and Anr. (Supra) and it is specifically held by the Hon'ble Supreme Court in the said decisions that the bar under Section 195(1)(b)(ii) of the CrPC would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in proceeding in any Court i.e. during the time when the document was in custodia legis. If the allegations are that first document was forged and thereafter the same was produced in the Court and/or Court proceedings in that case the bar under Section 195(1)(b)(ii) of the CrPC would not be attracted. Under the circumstances, the learned Magistrate as well as the learned Revisional Court has materially erred in dismissing the complaint on the ground that there would be a bar under Section 195(1)(b)(ii) of the CrPC. [5.2] Now, so far as the observation made by the Revisional Court that as there was no verification of the complainant on oath as required under Section 200 of the CrPC and therefore, the learned Magistrate was not justified in ordering inquiry under Section 202 of the CrPC and therefore, even otherwise the complaint deserves to be quashed and set aside is concerned, it is required to be noted that on the ground that the complainant was not examined on oath and/or verification of the complainant was not recorded on the complaint, the complaint as a whole cannot be quashed and set aside. At the most if the learned Magistrate has taken the cognizance and issued the process and/or has passed any order for inquiry under Section 202 of the CrPC in a complaint without recording the verification of the complainant, in that case the order passed by the learned Magistrate taking cognizance is required to be quashed and set aside and the matter is to be remanded to the learned Magistrate from the stage of verification. Under the circumstances, to that extent the observation made by the learned Revisional Court cannot be sustained. The view which is being taken by this Court is supported by the decision of this Court in the case of Anupam N. Chaudhary (Supra) and the decision of the Bombay High Court in the case of M/s. Nova Electricals, Jalgaon (Supra). It is observed in the aforesaid decision that the verification of the complainant as required under Section 200 of the CrPC is not a mere formality and the Magistrate has to ascertain thereby whether the complaint is genuine or frivolous. It is further held that for omission by the Court to record verification, the complainant cannot be penalized for it and on that ground the complaint cannot be quashed. The proper course is to quash the order issuing process and the trial Court is to proceed further from the stage of verification. It is further held that for omission by the Court to record verification, the complainant cannot be penalized for it and on that ground the complaint cannot be quashed. The proper course is to quash the order issuing process and the trial Court is to proceed further from the stage of verification. [6.0] In view of the above and for the reasons stated above, the impugned orders dated 20.11.2008 and 30.06.2010 passed by the learned Metropolitan Magistrate, Court No.15, Ahmedabad in Inquiry Case No.34/2008 as well as the order dated 13.01.2011 passed by the learned Additional Principal Judge, City Sessions Court, Ahmedabad in Criminal Revision Application No.366/2010 are hereby quashed and set aside and the matter is remanded to the learned Magistrate for considering the said complaint in accordance with law and on merits and after following due procedure as required under Section 200 of the CrPC and to proceed from the stage of verification. The aforesaid exercise shall be completed within a period of six weeks from the date of receipt of the present order. Rule is made absolute accordingly. Direct service is permitted.