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Gujarat High Court · body

2015 DIGILAW 964 (GUJ)

Hardik Bharatbhai Patel v. State of Gujarat

2015-10-01

J.B.PARDIWALA

body2015
Order J.B. Pardiwala, J. 1. By this application, the applicant - original respondent No. 2 of the Criminal Misc. Application No. 5549 of 2015 prays to recall the order passed by this Court dated 29th September 2015, which reads thus: "1. By this writ application under Article 226 of the Constitution of India, the petitioner has a grievance to redress as regards the inaction on the part of the police authorities in not registering the first information report pursuant to a complaint lodged by him in writing dated 9.9.2015 addressed to the Police Inspector of the Vastrapur Police Station, Ahmedabad. 2. The Police Inspector of the Vastrapur Police Station is directed to look into the complaint lodged by the petitioner herein (Annexure-A to this petition) and consider whether the same discloses commission of any cognizable offence or not. Upon perusal of the complaint and other materials, if any, the Police Inspector is of the view that the same discloses commission of a cognizable offence, then he shall proceed to register the first information report forthwith. However, for any reason, if the Police Inspector is of the view that the complaint fails to disclose commission of any cognizable offence, then in such circumstances, he shall inform the petitioner in writing by assigning reasons in brief within a period of fortnight from today. I clarify that I have otherwise not gone into the merits of the matter. 3. With the above observations and directions, this application is disposed of. Direct service is permitted." 2. Mr. Mangukiya, the learned counsel appearing for the applicant - original respondent No. 2, submitted that the order deserves to be recalled since before passing the order his client was not heard. He further submitted that none of the ingredients to constitute an offence punishable under Section 124A of the Indian Penal Code are spelt out on plain reading of the complaint lodged by the original petitioner in writing addressed to the Vastrapur Police Station, Ahmedabad. 3. Mr. Mitesh Amin, the learned Public Prosecutor appearing for the State has opposed this application. He submitted that this Court has no jurisdiction to recall the order once having passed the same in exercise of the criminal jurisdiction. 4. 3. Mr. Mitesh Amin, the learned Public Prosecutor appearing for the State has opposed this application. He submitted that this Court has no jurisdiction to recall the order once having passed the same in exercise of the criminal jurisdiction. 4. Having heard the learned counsel appearing for the parties and having gone through the materials on record, I may only say that the order passed by this Court, the recall of which is prayed for, is very innocuous. All that the Court has said in the order is that the Police Inspector of the Vastrapur Police Station, Ahmedabad, shall look into the complaint and verify whether the same discloses commission of any cognizable offence or not. It is further clarified in the order that if the complaint fails to disclose commission of any cognizable offence, then the petitioner be informed accordingly in writing. I make it very clear that this Court has not issued any mandamus to the police to register the FIR for the offence under Section 124A of the Indian Penal Code. Even otherwise, it is not permissible in law for the Court, in exercise of power under Article 226 of the Constitution of India, to straightway issue such a mandamus. My order dated 29th September 2015 is very much in tune with the decision of the Supreme Court in the case of Lalita Kumari v. Govt. of U.P. and others, reported in AIR 2014 SC 187 . 5. The applicant, as on today, cannot be termed as an accused. It is only if, ultimately, an FIR is registered against him that he could be termed as an accused. In my view, the order is in no manner prejudicial to the interest of the applicant. 6. Mr. Mangukiya, the learned counsel submitted that the order passed by this Court is being misused. Mr. Amin, the learned Public Prosecutor pointed out that there is no misuse of the order passed by this Court. 7. With the above, this application is disposed of. Direct service is permitted. Disposed off.