Research › Search › Judgment

Gujarat High Court · body

2015 DIGILAW 935 (GUJ)

Rilesh Batukbhai Beladia v. State of Gujarat

2015-09-22

J.B.PARDIWALA

body2015
JUDGMENT : J.B. Pardiwala, J. 1. By this petition under Article 227 of the Constitution of India, the petitioner the original complainant calls in question the legality and validity of the order dated 26-9-2014 passed by the learned 4th Additional District Judge, Surat in the Criminal Revision Application No. 120 of 2014, by which, the learned Sessions Judge rejected the Revision Application, thereby affirming the order passed by the learned Judicial Magistrate, First Class Mangrol dated 26-6-2014 below Exh. 1 in the Criminal Inquiry Case No. 15 of 2013. The facts giving rise to this petition may be summarized as under:- "2.1. The petitioner herein is the original complainant. He lodged a private complaint in the Court of the learned Additional Chief Judicial Magistrate, Mangrol and prayed for police investigation under Section 156(3) of the Code of Criminal Procedure, 1973 (for short, the Code). It appears that it came to the notice of the learned Magistrate that the police was also inquiring into the very same complaint. In such circumstances, the learned Magistrate thought fit to pass an order under Section 210 of the Code and called for the report of the status of the inquiry by the police. The Successor-in-Office rejected the prayer of the complainant to forward the complaint for police investigation under Section 156(3) of the Code and while doing so also, directed the complainant to remain present along with his witnesses for the purpose of proceeding further with the complaint according to Chapters 14 and 15 of the Criminal Procedure Code. It appears that while passing the impugned order, referred to above, the learned Magistrate observed that since his Predecessor-in-Office had passed an order under Section 210 of the Code calling for an appropriate report from the police, it can be said that the Predecessor-in-Office had taken cognizance upon the said complaint and once the cognizance is taken, then there is no question, thereafter, to order police investigation under Section 156(3) of the Code which would be a pre-cognizance stage. 2.2. Being dissatisfied with such an order passed by the learned Magistrate, the petitioner herein preferred a Criminal Revision Application which also came to be rejected by the Revisional Court." 2. Mr. Chetan Pandya, the learned Advocate appearing for the petitioner submitted that both the Courts below committed a serious error in passing the impugned orders. 2.2. Being dissatisfied with such an order passed by the learned Magistrate, the petitioner herein preferred a Criminal Revision Application which also came to be rejected by the Revisional Court." 2. Mr. Chetan Pandya, the learned Advocate appearing for the petitioner submitted that both the Courts below committed a serious error in passing the impugned orders. He submitted that the learned Magistrate ought to have ordered the police investigation under Section 156(3) of the Code having regard to the peculiar nature of the allegations and facts emerging from the record of the case. 3. He submitted that the view taken by the learned Magistrate as regards the provisions of Section 210 of the Code is absolutely incorrect and not tenable in law. 4. He submitted that in such circumstances, referred to above, this petition may be allowed and the impugned orders be quashed. 5. On the other hand, this petition has been vehemently opposed by Mr. K.L. Pandya, the learned Additional Public Prosecutor appearing for the respondent - the State of Gujarat. He submitted that whether to order police investigation under Section 156(3) of the Code or not is within the discretion of the learned Magistrate. The complainant cannot, as a matter of right, claim that his complaint should be sent for the police investigation under Section 156(3) of the Code. He submitted that it appears that in the present case, the learned Magistrate has thought fit to initiate an appropriate magisterial inquiry or order police inquiry under Section 202 of the Code after taking cognizance upon the complaint. Mr. Pandya submitted that no error, not to speak of any error of law could be said to have been committed by the Courts below, in any manner. He relied on the decision of the Supreme Court in the case of M/s. India Carat Pvt. Ltd. v. State of Karnataka, AIR 1989 SC 885 . 6. Having heard the learned Counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the Courts below committed any error in passing the impugned orders. 7. 6. Having heard the learned Counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the Courts below committed any error in passing the impugned orders. 7. It is well settled that it is within the discretion of the learned Magistrate to either order police investigation under Section 156(3) of the Code or take cognizance upon the complaint and order Magisterial inquiry or police inquiry under Section 202 of the Code or straightway issue process under Section 204 of the Code for a particular offence. It is equally true that while passing such an order, the learned Magistrate is not obliged to record any reasons for the same. At the same time, the learned Magistrate also owes the duty to see whether the police investigation would be more appropriate and effective in the peculiar facts of the case or the nature of the allegations. It is true that a particular type of complaint with a particular type of allegations requiring a particular type of investigation could be sent or ordered to be investigated through the police under Section 156(3) of the Code. However, in a given case, if the learned Magistrate finds that the police investigation is not necessary and the Court itself could look into the matter, then in such circumstances, the Court may be justified in taking cognizance and order magisterial inquiry or inquiry through police under Section 202 of the Code or straightway issue process under Section 204 of the Code. 8. Therefore, to the aforesaid extent, I do not find any infirmity or error in the orders passed by the Courts below. However, I have noticed something which, in my view, should not be overlooked because of the importance of the issue. It appears that the learned Magistrate is under a serious misconception that an order passed under Section 210of the Code amounts to taking cognizance, and therefore, the only option thereafter left with the Magistrate is to proceed further with the complaint, as provided under Chapters 14 and 15 of the Code. According to the learned Magistrate, once an order is passed under Section 210 of the Code, it has no power thereafter, to order police investigation under Section 156(3) of the Code. 9. In my view, such is not the correct proposition of law. According to the learned Magistrate, once an order is passed under Section 210 of the Code, it has no power thereafter, to order police investigation under Section 156(3) of the Code. 9. In my view, such is not the correct proposition of law. Let me first look into Section 210 of the Code. Section 210 requires procedure to be followed when there is a complaint case and police investigation in respect of the same offence and reads thus: "210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence:- (1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation. (2) If a report is made by the investigating police officer under Section 173 and on such report cognizance of any offence to taken by the Magistrate against any person who an accused in the complaint case, the Magistrate shall inquire together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. (3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him in accordance with the provision of this Code." 10. The bare reading of the above provision makes it clear that during an inquiry or trial relating to a complaint case, if it is brought to the notice of the Magistrate that an investigation by the police is in progress in respect of the same offence, he shall stay the proceedings of the complaint case and call for the record of the police officer conducting the investigation. 11. 11. The object of enacting Section 210 of the Code is three-fold:- (i) It is intended to ensure that private complaints do not interfere with the course of justice. (ii) It prevents harassment to the accused twice. (iii) It obviates anomalies which might arise from taking cognizance of the same offence more than once. 12. The Joint Committee of Parliament observed: "It has been brought to the notice of the Committee that sometimes when serious case is under investigation by the police, some of the persons file complaint and quickly get an order of acquittal either by cancellation or otherwise. Thereupon, the investigation of the case becomes infructuous leading to miscarriage of justice in some cases. To avoid this, the Committee has provided that where a complaint is filed and the Magistrate has information that the police is also investigating the same offence, the Magistrate shall stay the complaint case. If the police report (under Section 173) is received in the case, the Magistrate should try together the complaint case and the case arising out of the police report. But if no such case is received the Magistrate would be free to dispose of the complaint case. This new provision is intended to secure that private complainants do not interfere with the course of justice." (Emphasis supplied) 13. It is thus clear that before Section 210 can be invoked, the following conditions must be satisfied: (i) There must be a complaint pending for inquiry or trial. (ii) Investigation by the police must be in progress in relation to the same offence. (iii) A report must have been made by the police officer under Section 173. (iv) The magistrate must have taken cognizance of an offence against a person who is accused in the complaint case. 14. I may only say that mere calling for the papers of the police investigation or the report of the police, the learned Magistrate could not be said to have applied his mind in order to find out whether cognizance should be taken or not. It is preposterous to suggest that calling for the report of the police under Section 210 of the Cr. P.C. would amount to taking cognizance of the offence on the complaint of the complainant. In Section 210 of the Code, the words "during the course of inquiry or trial held by him" are very significant. 15. It is preposterous to suggest that calling for the report of the police under Section 210 of the Cr. P.C. would amount to taking cognizance of the offence on the complaint of the complainant. In Section 210 of the Code, the words "during the course of inquiry or trial held by him" are very significant. 15. In the Criminal Procedure Code of 1872, the expression "Enquiry" was defined as follows: "Enquiry includes any enquiry which may be conducted by a Magistrate or Court under the Act." 16. "Trial" was defined: "Trial means the proceedings taken in Court after a charge had been drawn up and includes the punishment of the offender. It includes the proceedings under Chapters XVI and XVIII from the time when the accused appears in the Court." In the Code of 1882, the definition of trial was omitted and the expression enquiry was defined: "Enquiry includes every enquiry conducted under this Code by a Magistrate or a Court." 17. It will be noted that in substance it was the same as in the Code of 1872. In the Code of 1898, also trial is not defined and the expression enquiry is defined as under: "Enquiry includes every enquiry other than a trial conducted under this Code by a Magistrate or Court." In the Code of 1973, enquiry is defined as under: "Enquiry means every enquiry other than a trial conducted under this Code by a Magistrate or Court." 18. It is true that the expression trial has not been defined in the Code as it stands now. It was defined in the Code of 1872. In criminal jurisprudence, as also in legal circles, a distinction is generally recognised between enquiry and trial. The very definition of the expression enquiry given in the present Code clearly goes to show that enquiry and trial are two different proceedings under the Code. It clearly emphasises that trial is a proceeding distinct from enquiry and the meaning of the word trial is very well understood in criminal jurisprudence. Having defined the expression enquiry the legislature thought it unnecessary to define trial. It would have been a surplusage which the legislature does not relish. 19. This distinction between enquiry and trial is also recognized in Ch. 19. Having defined the expression enquiry the legislature thought it unnecessary to define trial. It would have been a surplusage which the legislature does not relish. 19. This distinction between enquiry and trial is also recognized in Ch. 19. Under sub-heading "Cases instituted otherwise than on police report." Section 244, sub-Section (1) reads as under: "When, in any warrant case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution." Sub-section (2) of Section 244 reads as under: "The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing." Section 245 reads as under: "(1) If, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. (2) Nothing in this Section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless." Section 246 reads as under: (1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty or has any defence to make. (3) If the accused pleads guilty, the Magistrate shall record the plea, and may, in his discretion, convict him thereon. (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty or has any defence to make. (3) If the accused pleads guilty, the Magistrate shall record the plea, and may, in his discretion, convict him thereon. (4) If the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted under sub-section (3), he shall be required to state, at the commencement of the next hearing of the case, or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith whether he wishes to cross-examine, and if so, which, of the witnesses for the prosecution whose evidence has been taken. (5) If he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall also be discharged. (6) The evidence of any remaining witnesses for the prosecution shall next be taken, and after cross-examination and re-examination (if any), they shall also be discharged." 20. Section 247 reads as under: "The accused shall then be called upon to enter upon his defence and produce his evidence and the provisions of Section 243 shall apply to the case." 21. Sub-section (1) of Section 248 which relates to the conclusion of trial reads as under: "If, in any case under this chapter in which a charge has been framed, the Magistrate finds the accused not guilty, he shall record an order of acquittal." 22. These provisions of the Code in respect of the proceedings of cases instituted otherwise than on police report clearly recognise the two distinct stages of proceedings in a complaint case. A plain reading of Sections 244 to 248 would go to show that in complaint cases, before the framing of charge some pre-charge evidence is recorded with a view to enable the Magistrate to form an opinion if there is a ground for presuming that the accused has committed an offence triable under Ch. 19 and which offence such Magistrate is competent to try. If the Magistrate finds it otherwise, there is no option left with the Magistrate but to discharge the accused and dismiss the complaint. 19 and which offence such Magistrate is competent to try. If the Magistrate finds it otherwise, there is no option left with the Magistrate but to discharge the accused and dismiss the complaint. It would be noticed that it is only after the Magistrate applies his mind to the pre-charge evidence and after he comes to the conclusion that there is ground for presuming that the accused has committed the offence that a formal charge is framed against the accused. After the framing of the charge, the charge is read over and explained to the accused and if he pleads guilty, the matter ends there, as the Magistrate in his discretion is empowered to convict him, on his plea of guilty. These provisions further clearly lay down that if the accused pleads not guilty and claims to be tried, then he has to be asked whether he wishes to cross-examine any witness for the prosecution, whose evidence has been recorded at the pre-charge stage, and thereafter, the prosecution is asked to lead the remaining evidence. These provisions would clearly show that at the enquiry stage if the Magistrate finds the charge groundless, the accused is discharged. But after the accused is put on trial, the question of discharging him does not arise. At the conclusion of the trial, the accused can either be acquitted or convicted. Even in summons cases and summary cases, the trial starts only after the substance of accusation is read over and explained to the accused. In such cases also, if the accused pleads not guilty, the trial begins. 23. Having gone through the relevant provisions carefully, I find that even though the word trial has not been defined in the present Code, it does recognise the distinction between two distinct stages of enquiry and trial in complaint cases. 24. In the case in hand, the learned Magistrate on receipt of the complaint considered the averments made in the complaint and the documents attached with the complaint, and thereafter,, thought fit to pass an order under Section 210 since it came to the notice of the Magistrate that the police was also looking into the same allegations pursuant to the complaint lodged by the complaint in writing addressed to the police. Thus, on 23-11-2013, when such order was passed, there was no inquiry or trial pending before the Magistrate. 25. Thus, on 23-11-2013, when such order was passed, there was no inquiry or trial pending before the Magistrate. 25. I am of the view that even if the investigation by the police was in progress, the Magistrate could have still taken cognizance and could have ordered an inquiry under Section 202 of the Code or it was also open for the Magistrate to pass an order of investigation through police under Section 156(3) of the Code. Only because in the order, it has been mentioned that the learned Advocate was heard and the complaint and accompanying documents were perused would not necessarily suggest that the learned Magistrate had decided to take cognizance or had already taken cognizance. Even for the purpose of passing an order of police investigation under Section 156(3) of the Code, some application of mind is necessary. It is preposterous to suggest that for the purpose of passing an order under Section 156(3) of the Code, the Magistrate should not look into anything, but only if he decides to take cognizance, then he should look into the averments made in the complaint and the documents accompanying the complaint. 26. Under Section 210(1), a Magistrate in course of an inquiry or trial in a complaint case if comes to know that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, then the said Magistrate shall stay the proceeding of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation. Under sub-Section (2) of Section 210, when a police officer submits a report under Section 173 and on such report the Magistrate takes cognizance of any offence against a person who is also an accused in the complaint case, then the Magistrate shall inquire and try the complaint case as well as the arising out of the police report together as if both the cases were instituted on a police report. But under sub-section (3) of Section 210 if the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of the offence on the police report then he must proceed with the inquiry or trial of the complaint case which had been stayed by him under sub-section (1). But under sub-section (3) of Section 210 if the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of the offence on the police report then he must proceed with the inquiry or trial of the complaint case which had been stayed by him under sub-section (1). This being the provision of law, undoubtedly, a Magistrate is required to stay his hand in the complaint case if it comes to his knowledge that self-same occurrence is inquired into by the police. But if he does not stay his hand and proceeds with the inquiry, the inquiry cannot be said to be without jurisdiction or non-est. 27. A bare reading of the provisions contained in Section 210 of the Code of Criminal Procedure does not make an inquiry directed by the Magistrate in the complaint case either without jurisdiction or the result of the inquiry can be said to be vitiated on the ground that the Magistrate was entitled to stay the complaint proceeding in exercise of power under Section 210(1). Sub-section (3) of Section 210, on the other hand, itself authorises the Magistrate to proceed with the inquiry or trial which had been stayed by the Magistrate under Section 210(1) if the Magistrate does not take cognizance of any offence in the C.R. case under sub-section (2) of Section 210. 28. The decision of the Supreme Court in the case of M/s. India Carat Pvt. Ltd. vs. State of Karnataka, AIR 1989 SC 885 , nowhere stipulates that where a Magistrate was required to stay his hand in the complaint case under Section 210(1) does not stay his hand and proceeds with the inquiry in the complaint case, then the said inquiry is invalid and the materials produced in the inquiry cannot be taken into consideration for taking cognizance of the offence in question. In the aforesaid Supreme Court decision what has been held is that upon receipt of a police report under Section 173(2) of the Code of Criminal Procedure a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) even if the police report is to the effect that no case is made out against the accused. In the aforesaid Supreme Court decision what has been held is that upon receipt of a police report under Section 173(2) of the Code of Criminal Procedure a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) even if the police report is to the effect that no case is made out against the accused. In other words, a Magistrate can ignore the conclusion of the police and by applying his mind to the materials produced during investigation it comes to the conclusion that prima facie case is made out can take cognizance under Section 190(1)(b). It has also been held in the said case that it is open to the Magistrate to act under Section 200 or 202 of the Code of Criminal Procedure also. When a complaint case is registered on the basis of a complaint made by the complaint and the Magistrate in course of inquiry or trial into the said complaint comes to know that an investigation by the police is in progress in relation to the self-same offence, then he shall stay the proceeding before him on the basis of the complaint and shall call for a report on the matter from the police officer conducting investigation. If he does not stay his hand as provided under sub-Section (1) of Section 210 and proceeds with the complaint case, then the order taking cognizance or the order directing an inquiry under Section 202 of the Code of Criminal Procedure cannot be said to be without jurisdiction. Where he stays his hand under sub-Section (1) of Section 210, the proceeding itself is revived if the report submitted by the police, does not relate to any accused in the complaint case or if no cognizance of any offence is taken on the basis of the report submitted by the police and the Magistrate would, therefore, proceed with the inquiry or trial which had been stayed by him under sub-section (1) of Section 210. 29. 29. The decision of the Supreme Court in the case of Sankaran Moitra vs. Sadhna Das, AIR 2006 SC 1599 , wherein the Supreme Court, in Para 49 of the dissenting view of His Lordship C.K. Thakkar, J. has observed that one of the conditions before Section 210 of the Code, could be invoked is that the Magistrate must have taken cognizance of an offence against a person who is accused in the complaint case, should be understood as commencement of the inquiry after taking cognizance i.e. either it could be an order of magisterial or police inquiry under Section 202 of the Code or trial after straightway issuing process under Section 204 of the Code. This, in my view, should not be construed as laying down a proposition of law that if an order under Section 210 of the Code is passed even before the inquiry has commenced, then cognizance is deemed to have been taken upon the complaint. 30. To the aforesaid extent, the view taken by the learned Judicial Magistrate, Mangrol is not correct. However, it appears that on other grounds also, the learned Magistrate took the view that no case for police investigation under Section 156(3) of the Code was made out. With the above clarification, this petition is disposed of without disturbing the impugned orders passed by the Court below. The learned Magistrate shall now proceed further in accordance with law.