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2016 DIGILAW 1174 (GUJ)

Majid Haji Ibrahim v. State of Gujarat

2016-06-24

A.J.SHASTRI

body2016
JUDGMENT : A.J. Shastri, J. 1. The petitioners, who are the original accused persons have filed the present petition for the purpose of quashing the complaint dated 24.10.2008 registered as Inquiry Case No. 82 of 2008 pending before the learned Metropolitan Magistrate, Court No. 13, Ahmedabad for the offences punishable under Sections 406, 420 and 114 Indian Penal Code (for short "the IPC") and consequentially as prayed for quashing the issuance of process under Section 204 of the Code of Criminal Procedure (for short "Cr.P.C.") dated 14.10.2010 by invoking extraordinary jurisdiction under Section 482 of Cr.P.C. 2. The case in brief presented by the petitioners is that the respondent No. 2 filed the complaint on 24.10.2008 before the Court of Metropolitan Magistrate, who on the very same day issued an order under Section 156(3) of the Cr.P.C. against the petitioners and also against their mother aged about 90 years by showing her as accused No. 3. The statement of the said accused was recorded by way of Inquiry Case No. 82 of 2008. It is the case of the petitioners that pursuant to the order under Section 156 (3) Cr.P.C., the investigation was carried out by Navrangpura Police Station and the investigating agency recorded various statements of persons, collected the evidence and having found appropriate, filed "B-Summary" in the same complaint on 05.03.2010. It was thereafter almost period of five months, after presentation of B-Summary before the learned Metropolitan Magistrate on 14.10.2011, again a process came to be issued against the present petitioners and the original accused No. 3 i.e. mother. Despite the fact that B-summary has not been challenged anywhere, it is in the background of this fact, the petitioners have filed the present petition by invoking the jurisdiction of this Court. This Court vide order dated 29.03.2012 has issued a notice making it returnable on 16.04.2012 and subsequently, after hearing both the sides passed an order on 03.05.2012 admitting the matter and granted interim relief in terms of Para-7(C). The said order reads as under:-- "Upon ipsi dipsi of the material on record, the learned Magistrate has issued the process and set the criminal machinery into motion. Accordingly, the matter deserves consideration. Hence, Rule. Learned APP, waives service of rule on behalf of respondent No. 1 and Mr. Sanjay Prajapati, learned advocate, for respondent No. 2. Interim relief in terms of para 7(C) is granted." 3. Accordingly, the matter deserves consideration. Hence, Rule. Learned APP, waives service of rule on behalf of respondent No. 1 and Mr. Sanjay Prajapati, learned advocate, for respondent No. 2. Interim relief in terms of para 7(C) is granted." 3. The petition came up for final hearing and the learned counsel for the petitioners submitted that entertaining the complaint and consequential issuance of process under Section 204 of Cr.P.C. is nothing but a clear non application of mind on the part of the learned Magistrate and is nothing but serious error on the part of the learned Magistrate to just exercise discretion. Counsel for the petitioners has further contended that in the very same complaint, the learned Magistrate was pleased to issue an order under Section 156(3) of Cr.P.C. in a very same casual manner, the same was not carried further and the petitioners have co-operated and allowed the investigating machinery to investigate the matter and after that the investigating agency has recorded several relevant person's statement and collected evidence and thereafter filed B-summary on 05.03.2010. The counsel for the petitioners has further stated that this very process is not the subject matter of anywhere and even the respondent No. 2 has not filed any proceedings against filing of B-summary report dated 05.03.2010. The counsel for the petitioners further argued that in the background of this fact to issue process under Section 204 of Cr.P.C. in a mechanical manner after more than a period of five months, is nothing but a serious error on the part of the learned Magistrate to exercise of jurisdiction and therefore, the counsel requested the Court to quash the issuance of process and also inquiry Case No. 82 of 2008 pending before the learned Metropolitan Magistrate Court No. 13, Ahmedabad. Learned counsel for the petitioners further pointed out to this Court that there is no other new material tangible enough available on record, which would permit the learned Magistrate to issue process under Section 204 of Cr.P.C. The counsel for the petitioners has drawn the attention of this Court that all the statements, which were recorded before filing B-summary, were on 04.01.2010 and by pointing out, learned counsel for the petitioners submitted that after that there appears to be no fresh material, which would warrant the exercise of jurisdiction in issuing process under Section 204 of Cr.P.C. in the background of this fact. The counsel for the petitioners requested the Court that issuance of process under Section 204 of Cr.P.C. is nothing but a clear example of non application of mind and therefore, the relief as prayed for deserves to be granted. Learned counsel for the petitioners has further submitted that subsequent to filing the B-summary report there is no fresh material produced on record, nor any verification in the form of affidavit, is filed by the respondent No. 2 and the complaint is not attached with any documents and therefore, in the absence of any such kind of circumstances being available to the learned Magistrate, it was not open to issue process. The counsel for the petitioners has further submitted that it is not open for the learned Magistrate to issue process in a mechanical manner and therefore in the background of this fact and circumstances it is desirable in the interest of justice to grant the relief as prayed for. Learned counsel for the petitioners has further drawn the attention of this Court's decision on the aspect of issuance of process on the complaint and requested the Court that same analogy be applied to the present case and ultimately requested to see that issuance of process under Section 204 of Cr.P.C. be set aside. When it was pointed out that whether respondent No. 2 would be satisfied with the direction of remand which ultimately follow due process of law contemplated under Section 200 of Cr.P.C. and onwards. The learned counsel for the petitioners agreed that after quashing and setting aside the order of issuance of process under Section 204 of Cr.P.C., the learned Magistrate may be directed to apply its mind to give fresh look in this regard. The decision relied upon by the learned counsel for the petitioners in the case of Ramanbhai Zanzarbhai Ghanghar v. State of Gujarat reported in 2012 (1) GLH 586 , this Court in the context of Sections 202 and 202 of Cr.P.C. has ultimately come to the conclusion that it is expedient on the part of the learned Magistrate and directed the concerned Trial Court to proceed further from the stage of verification. Since the learned counsel for the petitioners has relied upon the decision of this Court and having satisfied with that part of the direction, the court has not dwelt further with regard to the issue in question, since no other submission thereafter have been made. The counsel for the petitioners alternatively therefore circumscribed his contentions and ultimately requested the Court to pass an order in the light of the decision delivered by this Court reported in 2012 (1) GLH 586 , the Court has taken up of the issue only from that angle. 4. As against this, the learned counsel appearing for the respondent No. 2 has candidly submitted that no other material was available after filing of the B-summary report and also not been available to controvert whether any verification of the complaint is available of the complainant thereafter and therefore, counsel for the respondent No. 2 could not agitate ultimately on same line requested in same time to sent back the matter to the learned concerned Magistrate by quashing and setting aside the impugned order of issuance of process dated 14.10.2010. 5. In the light of the aforesaid submissions from the respective sides and in the light of the background of the present facts and circumstances, it appears that B-summary report after inquiry pursuant to the order under Section 156(3) of Cr.P.C. is already filed on record and further that there appears to be no material tangible enough to issue process under Section 204 of Cr.P.C. in a mechanical manner without applying mind, which has been curled out from the record and submissions of the counsels from both the sides that filing of B-summary report has not been agitated anywhere by respondent No. 2 by filing appropriate proceedings and in view of this position, it appears to this Court that in absence of any cogent material available different from that which was already recorded pursuant to the filing of B-summary report, it is not open for the learned Magistrate to just mechanically issue process under Section 204 of Cr.P.C., more particularly after almost a period of five months. A bare look at the decision delivered by this Court in the case of Ramanbhai Zanzarbhai Ghanghar (supra), this Court has on analysis of the provisions contained under Section 200 of Cr.P.C. as well as under Section 202 of Cr.P.C. and in that context also having not examined the complainant on oath, having no verification of the complainant on record of the case, the Court has found issuance of process even under Section 202 of Cr.P.C. is ill founded and therefore, the Court has quashed and set aside the said issuance of process whereby an order of inquiry under Section 202 of Cr.P.C. is ordered by the Magistrate is quashed. It has been observed by this Court in Para-5.2 of the said judgment relying upon two cases of various Courts and observed that verification of the complainant as required under Section 200 of Cr.P.C. is not a mere formality and it is incumbent that on the part of the learned Magistrate to ascertain thereby whether the complaint is genuine or frivolous, the omission by the Court is a serious lapse but the complainant cannot be penalized for want of that. Therefore, the complaint cannot be quashed but on account of that flow the issuance of process is required to be quashed and that is the reason why the Court in the aforesaid case had taken care balance situation and protected the interest by quashing and setting aside an order of inquiry under Sections 200 & 202 of Cr.P.C., ultimately the matter came to be remanded back to proceed from the stage of verification. It was directed that the said process was to be undertaken within the stipulated time. The relevant observations of the said decision worth to be taken note of and is being referred here-in-after. Para Nos. 5.1 to 6.0 "[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. The relevant observations of the said decision worth to be taken note of and is being referred here-in-after. Para Nos. 5.1 to 6.0 "[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. 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. [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." 6. In view of the above situation, it is quite clear that in the present case also without application of mind even after the submission of B-summary report the process under Section 204 of Cr.P.C. came to be issued for the offences punishable under Sections 406, 420 and 114 of the IPC on 14.10.2010. In the background of the aforesaid fact, it appears to the Court that if this order is allowed to stand on the record and to operate upon, not only serious prejudice will cause to the petitioners but would result into miscarriage of justice. In the background of the aforesaid fact, it appears to the Court that if this order is allowed to stand on the record and to operate upon, not only serious prejudice will cause to the petitioners but would result into miscarriage of justice. The object of issuance of process would be defeated, if this kind of exercise is allowed to be operated. Recently, Hon'ble the Supreme Court confronted in a situation whereby the learned Magistrate's powers was to be examined on issuance of summons under Section 204 of Cr.P.C. Hon'ble the Supreme Court has also propounded the position and in no uncertain terms held that the Magistrate is not a silent spectator at the time of recording evidence and he is to scrutinize the evidence brought on record and may even put question to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations. Applying the principles laid down by Apex Court in the case of Pooja Ravinder Devidasani v. State of Maharashtra and another reported in (2014) 16 SCC page-1, this Court is also of the considered opinion that in the present case also the learned Magistrate has misdirected himself in discharging his duty for careful examining and scrutinize the witness before issuance of summons to the accused. The issuance of summons is a serious matter which must reflect concerned Magistrate is application of mind and the law applicable thereto. It is in this background of fact, it appears to the Court that the order passed by the learned Magistrate is absolutely unjust not tenable in the eye of law and reflects a clear non application of mind. While coming to this conclusion, this Court has relied upon the observations made by Hon'ble the Supreme Court in Para-22 on the decision in the case of Pooja Ravinder Devidasani(supra). "22. As held by this Court in Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors., (1998) 5 SCC 343 , summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. Criminal law cannot be set into motion as a matter of course. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused." 7. Considering the aforesaid situation which is erupted in the present case, it is desirable in the interest of justice and to maintain the spirit of object contained under the relevant provisions for issuance of process viz-à-viz the duty on the part of the concerned Magistrate, this Court is of the opinion that this petition deserves to be party allowed by quashing and setting aside the impugned order dated 14.10.2010 in Inquiry Case No. 82 of 2008 passed by learned Metropolitan Magistrate, Court No. 13, Ahmedabad. Since, the issuance of summons/process under Section 204 of Cr.P.C. impugned in this petition reflects clear non application of mind, this Court is not desirous to quash main complaint at this stage, more particularly when the learned counsel for the petitioners restricted himself and satisfied with this part of the relief being granted by the Court and since the Court is not called upon to quash the complaint in the background of the aforesaid fact, no observation qua that is made in the present case. However, in view of the fact that the request is made to pass an order in the context of the decision of this Court in the case of Ramanbhai Zanzarbhai Ghanghar (supra), the impugned order dated 14.10.2010 passed at Exh. However, in view of the fact that the request is made to pass an order in the context of the decision of this Court in the case of Ramanbhai Zanzarbhai Ghanghar (supra), the impugned order dated 14.10.2010 passed at Exh. 1 is quashed and set aside hereby and consequently the matter is sent back to the Trial Court for considering the complaint in accordance with law and to proceed and adjudicate further from the stage where it has rested before the learned Magistrate. It is expected that in view of the decision, the learned Magistrate may deal with the complaint in an appropriate manner available under the law and see to it the same be disposed of in accordance on its own merits after granting appropriate opportunity to the parties concerned. 8. In view of above, this petition is disposed of by partly allowing in the aforesaid terms.