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2015 DIGILAW 630 (GUJ)

Pravinsinh Somaji Makwana v. State of Gujarat

2015-06-24

R.D.KOTHARI

body2015
JUDGMENT R.D. Kothari, J. 1. Being aggrieved by the order of issuance of process passed by the learned J.M.F.C., Prantij in Criminal Inquiry Case No. 7 of 2009, the petitioner has preferred the present petition. Criminal Inquiry Case No. 7 of 2009 arises out of the complaint filed by one Rajusinh Dhulsinh Makwana as the father of the deceased, for offence under Sec. 302 of the Indian Penal Code. In substance the say of the complainant is as under: 1.1. The complainant's daughter named Tina @ Laxmiben was aged about 23 years at the time of lodging the complaint. The complainant says that she was married earlier and on account of divorce with her said earlier husband, she was residing with the complainant. The compliant is filed against three persons namely Pravinsinh Somaji Makwana, Dineshji Javanji Chauhan and Rameshji Gidhaji Parmar. It is the say of the complainant that Pravinsinh (A1) and deceased were in love. However, A2 and A3 were against the relationship of A1 with the deceased. A2 is the uncle of (mama) of A1 and A3 is the cousin brother of A1. It is the say of the complainant that on 5-4-2009 for illicit purposes accused persons have taken away the deceased. The complainant made inquiry. However, the deceased was not found. He approached the police. The police did not pay any heed. The parents of A1 on the next date i.e. 6-4-2009 informed the complainant that her daughter has consumed poison and she is taken to Himmatnagar Hospital. On late night of 6-4-2009 the deceased died. 1.2. The complainant then lodged the complaint before the Court i.e. the present complaint. It appears that the learned trial Court was unaware about course to be adopted when complaint for offence under Sec. 302 of the Indian Penal Code is received by the Court. The statutory provision is fairly clear and the correct course to be adopted may be mentioned little later. The first course adopted by the learned trial Court in the present case may be mentioned. On receipt of complaint on 11-6-2009. the learned trial Court has passed the order - "P.I. Prantij to investigate and report under Sec. 202 of the Code of Criminal Procedure." Pursuant to that order, P.I. Prantij had conducted the inquiry and submitted a report dated 3-9-2009. 1.3. On receipt of complaint on 11-6-2009. the learned trial Court has passed the order - "P.I. Prantij to investigate and report under Sec. 202 of the Code of Criminal Procedure." Pursuant to that order, P.I. Prantij had conducted the inquiry and submitted a report dated 3-9-2009. 1.3. After receiving the report of P.I., Prantij, later on the Court realized its mistake and passed an order on 16-6-2010. It is stated in the said order that for offence under Sec. 302 of the Indian Penal Code, P.I., cannot conduct the inquiry and it is for the Court to hold inquiry. Accordingly, the Court has kept the matter for conducting the inquiry under Sec. 202 of the Code of Criminal Procedure. 1.4. Thereafter, after completion of inquiry, the order under challenge came to be passed. Hence, the present petition. 2. Heard Mr. S.K. Patel learned Advocate for the petitioners. The learned Advocate for the petitioners draws attention of the Court to the contents of the order under challenge and submitted that prima facie in the facts and circumstances of the present case, the order of issuance of process against the petitioner is bad and illegal. 3. On the other hand, learned Advocate Mr. Bhoharia, for the complainant - respondent No. 2 herein has submitted that considering the seriousness of the complaint, the matter should be remanded to the trial Court. 4. Referring to Sec. 202(2) of the Code of Criminal Procedure and its proviso, learned A.P.P. Mr. Jani has supported the say of the complainant and submitted that the matter be remanded to the trial Court. 4.1. In the impugned order, the trial Court has recorded that--though sufficient time was given to the complainant, the complainant has not given any statement nor he has produced any witnesses in the inquiry proceedings - that being so, the Court has closed the right of the complainant on 9-2-2011 - Thereafter, i.e., even after closing the right of the complainant, the complainant was asked by the Court whether he wants to give any statement or examine any witnesses. In response to that, the complainant had filed purshis at Exh. 6 (closing purshis) - declaring that he did not want to give any statement nor he wants to examine any witnesses. He has stated that the Court may pass order on the basis of his complaint. This last referred aspect, namely filing of closing purshis. Exh. In response to that, the complainant had filed purshis at Exh. 6 (closing purshis) - declaring that he did not want to give any statement nor he wants to examine any witnesses. He has stated that the Court may pass order on the basis of his complaint. This last referred aspect, namely filing of closing purshis. Exh. 6 and declaration made therein by the complainant is emphasized by the Court by marking it with underline. 5. Surprisingly, despite the above fact the Court has passed the order to issue process observing that the complaint is for offence triable by the Sessions Court and Court of learned J.M.F.C. has very limited powers. It has observed that final order is to be passed by the learned Session Judge. 6. It is too broad a proposition to say that it is the duty of the Court to examine the witnesses when the complaint is filed for the sessions triable offence. The said submission cannot be accepted as absolute proposition. The propriety and legality of the order passed by the Magistrate in such cases may be ascertained by considering whether sufficient opportunity is given to the complainant or not. It is pertinent to note here that it is not the say of the complainant that he was ready to give statement or wanted to examine the witnesses in support of his say, but he was not allowed by the Court or that no opportunity or sufficient opportunity was not given by the Court to him either for examining himself or to produce and examine the witnesses, in support of his say. Had it been such case, that the Court takes up for consideration without calling upon the complainant to examine and/or to produce the witnesses or sufficient opportunity was not given by the Court to the complainant then the matter would have been different. Learned Advocate Shri Patel referring to the certified copy of the Rojkam has pointed out that before passing the impugned order i.e. the order dated 28-2-2011, the proceedings were adjourned for ten times even then the complainant does not come forward and has not produced the witnesses. It may be either on account of ignorance or laziness on the part of the complainant. Perusal of the complaint gives an impression that ignorance is less likely. 7. It may be either on account of ignorance or laziness on the part of the complainant. Perusal of the complaint gives an impression that ignorance is less likely. 7. It would be more proper to say that while appreciating the order passed by the Magistrate in such cases, the propriety and legality of it substantially depends upon the facts and circumstances of the given case. In other words, if it had come to the knowledge of the Court that really some serious incident has taken place and the complainant does not show any interest, then keeping aside the complainant, the Court may proceed to ascertain the truth. The Court may examine the witnesses overriding the inaction of the complainant and try to ascertain the truth. It depends upon the nature and contents of the complaint and the facts and circumstances of the given case. The facts of the present case are not such that fault can be found with the Court. Though the police has no power to conduct inquiry for the complaint filed before the Court for the offence under Sec. 302 of the Indian Penal Code, the fact is pursuant to initial order passed in the present case, the report of the P.I., is on record and it is difficult to ignore the report totally. Serious irregularity by itself do not wash out the material which is otherwise not irrelevant. It appears that the P.I. has recorded the statement of the witnesses. The report of P.I. apart, it is the say of the complainant himself in the complaint that A1 and deceased both have consumed poison, however, A1 had consumed it in a very little degree compared to the poison taken by the deceased. The computer typed complaint and the conduct of the complainant if read together does not give impression that some truth requires to be unearthed and for that the Magistrate was required to issue notice - suo motu - notice to "some" (to whom?) witnesses. 8. It may also to be mentioned that the complaint itself is typewritten - computer typed. Reading of the complaint gives an impression that the same is drafted with the aid of an Advocate. Further, in the complaint itself, the complainant says that the family members of the petitioners are his witnesses. 8. It may also to be mentioned that the complaint itself is typewritten - computer typed. Reading of the complaint gives an impression that the same is drafted with the aid of an Advocate. Further, in the complaint itself, the complainant says that the family members of the petitioners are his witnesses. Except statement to that effect, name of witnesses or list of witnesses not given by the complainant in the complaint or later on. 8.1. The correct course to be adopted by the Magistrate Court when a complaint for Sessions triable offence is received by it - is - the concerned Magistrate Court has to hold inquiry under sub-sec. (2) of Sec. 202 of Code of Criminal Procedure. It may be borne in mind that in the complaint filed before the Court for Sessions triable offence, the Magistrate Court cannot send the same to the police for inquiry. At the end of inquiry, Magistrate has to form an opinion. His opinion may lead to either of these two alternate. One, in the opinion of the Magistrate no sufficient ground to proceed with the complaint is found, the Magistrate may dismiss the complaint under Sec. 203 of the Code of Criminal Procedure and in the alternate to it, if the Magistrate is of the opinion that there is sufficient ground to proceed against the accused, then he may issue process to the accused under Sec. 204 of the Code of Criminal Procedure. It may also be borne in mind that in case the later option i.e. the Court passed the order to issue process - summons or warrant against the accused, the complainant is required to furnish the list of prosecution witnesses as required under Sec. 204(2) of the Code of Criminal Procedure before issuance of process. Statutory provision is simple and clear, it hardly leaves any room for error by the Magistrate, if little attention is paid by him. 9. In the present case, in view of the findings recorded by the trial Court that neither the complainant has given any statement nor he has produced any witnesses, the appropriate order to be passed by the Court in the circumstances of the case, was to dismiss the complaint as there was no sufficient ground for proceeding with the complaint. In view of the above discussion, the petition is allowed. In view of the above discussion, the petition is allowed. The compliant being Criminal Inquiry Case No. 7 of 2009 dated 11-6-2009 and the subsequent proceedings are hereby quashed and set aside. Rule is made absolute to the aforesaid extent.