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2016 DIGILAW 1905 (GUJ)

Bhima Kana Keshwala v. State of Gujarat

2016-09-02

VIPUL M.PANCHOLI

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JUDGMENT : VIPUL M. PANCHOLI, J. This petition is filed under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 by the original accused No. 5 for quashing and setting aside the FIR being C.R No. I-79/2011 registered with Kamlabaug Police Station and the order dated 17.09.2012 passed by learned Chief Judicial Magistrate, Porbandar by which process is issued against the petitioner. 2. Heard learned advocate Mr. Rushabh R. Shah with learned advocate Mr. Hardik Dave for the petitioner and learned APP Mr. Rutvij Oza for the respondent State. Though served, respondent No. 2 complainant has not remained present. 3. Learned advocate for the petitioner submitted that the respondent No. 2-complainant filed FIR being C.R No. I-79/2011 registered with Kamlabaug Police Station, Porbandar for the offence punishable under Sections 454, 457, 380, 427 and 114 of Indian Penal Code, wherein the petitioner is shown as accused No. 5. Learned advocate referred to the allegations made in the said FIR against the present petitioner and submitted that none of the ingredients of the alleged offence are made out against the petitioner. At this stage, it is further submitted that before registration of the said FIR, the original accused No. 1-Kirit Sadiya filed one complaint before the Police Inspector, Kamlabaug Police Station against the present respondent No. 2 complainant-Rahul Dangar, inter alia alleging that said Rahul Dangar was in the process of illegally entering into the residential house of Kirit Sadiya and was likely to take illegal possession of the house belonging to Shri Kirit Sadiya. The said complaint was registered as FIR being C.R No. I-49/2011 under Sections 427, 447, 504, 506(2) of Indian Penal Code and Sections 3(1) and 5 of the Atrocities Act against the present respondent No. 2. The Investigating Officer, after the investigation, filed charge-sheet against the respondent No. 2. 4. It is further submitted that the present respondent No. 2 filed Criminal Inquiry Case No. 62 of 2011 in the Court of learned Chief Judicial Magistrate, Porbandar on 04.06.2011 against Kirit Sadiya and others including the present petitioner for the alleged offence of illegal house trespass, house breaking and theft. The said complaint was sent for police inquiry under Section 202 of the Code of Criminal Procedure, 1973. The said complaint was sent for police inquiry under Section 202 of the Code of Criminal Procedure, 1973. It is submitted at this stage that the respondent No. 2 by suppressing the aforesaid aspects filed Special Criminal Application No. 1469 of 2011 before this Court, wherein the grievance was raised that the respondent No. 2-complainant has given a complaint on 12.05.2011 before the Kamlabaug Police Station. However, the same is not registered as FIR and therefore, necessary direction be issued to the concerned police authority for registration of the same as FIR. This Court, therefore, directed that the respondent No. 2 herein shall approach before the concerned police station for registration of the FIR and the same shall be registered. Thus, on the basis of the order passed by this Court, the FIR being C.R No. 79/2011 came to be registered against the petitioner and others. At this stage, it is further contended that after the registration of the FIR, the respondent No. 2 withdrew the private complaint being Inquiry Case No. 65 of 2011 filed by him. The same was permitted to be withdrawn on 27.09.2012 Thus, it is contended that when the respondent No. 2 has failed to obtain the order from the learned Magistrate of investigation u/s. 156(3) of the Code of Criminal Procedure, 1973, he filed petition before this Court and thereafter the FIR was registered against the petitioner and others and thereafter he has withdrawn the private complaint filed by him. Hence, the impugned FIR is nothing but an abuse of the process of the Court. 5. Learned advocate Mr. Shah thereafter contended that after registration of the FIR, the Investigating Officer carried out the investigation and thereafter filed ‘A’ summary report. The learned Magistrate also accepted the said report. However, the complainant suggested that some statements of the witnesses are required to be recorded. Therefore, the learned Magistrate directed the Investigating Officer to record the statements of some witnesses and thereafter to submit the report. After recording of the statement of the witnesses, the Investigating Officer once again submitted ‘A’ summary report before the Magistrate. However, by way of impugned order, the learned Magistrate has not accepted ‘A’ summary report and issued the process against the petitioner and others. Petitioner has, therefore, filed the present petition challenging the issuance of the process against the petitioner by the learned Magistrate. Learned advocate Mr. However, by way of impugned order, the learned Magistrate has not accepted ‘A’ summary report and issued the process against the petitioner and others. Petitioner has, therefore, filed the present petition challenging the issuance of the process against the petitioner by the learned Magistrate. Learned advocate Mr. Shah submitted that the learned Magistrate has not properly considered the fact that the petitioner is serving as work-charge supervisor and even assuming without admitting that though the allegations levelled by the respondent No. 2 against the present petitioner are correct, even then the ingredients of the alleged offence are not made out qua the present petitioner and hence the impugned order passed by the learned Magistrate be quashed and set aside. 6. On the other hand, learned APP submitted that the learned Magistrate, after considering the material produced by the Investigating Officer, has deemed it appropriate to issue the process against all the accused and therefore, no illegality is committed by the learned Magistrate and therefore the present petition be dismissed. 7. I have considered the submissions canvassed on behalf of the learned advocate appearing for the parties. Though notice is served to the respondent at admission stage and thereafter the rule is served, respondent No. 2 has chosen not to remain present and contest the present petition and therefore, this Court has no option but to proceed with the matter in absence of respondent No. 2. It is revealed from the record that original accused No. 1-Kirit Sadiya filed FIR under Sections 427, 447, 504, 506(2) of Indian Penal Code and Sections 3(1) and 5 of the Atrocities Act against the present respondent No. 2. The Investigating Officer, after investigation, filed charge-sheet against the respondent No. 2. The said FIR and the counter of the charge-sheet are produced with the petition. The FIR which is registered against the respondent No. 2 was filed on 12.05.2011. It is further revealed that the respondent No. 2 also gave written application against Kirit Sadiya and others before the concerned police station. However, the said complaint was not registered as FIR and therefore the respondent No. 2 filed a private complaint on 04.06.2011 before the learned Magistrate. The same was registered as Inquiry Case No. 65 of 2011. In the said private complaint the learned Magistrate passed an order of inquiry by the police under Section 202 of the Criminal Procedure Code, 1973. The same was registered as Inquiry Case No. 65 of 2011. In the said private complaint the learned Magistrate passed an order of inquiry by the police under Section 202 of the Criminal Procedure Code, 1973. In the said written complaint, the respondent No. 2 prayed for registration of the FIR. However, learned Magistrate ordered inquiry u/s. 202 of Code of Criminal Procedure. It appears that the respondent No. 2 thereafter approached this Court by filing a petition with a grievance that his written complaint given on 12.05.2011 to the concerned police station has not been registered as FIR and therefore, necessary direction be given to the concerned police station. This Court by an order dated 12.07.2011 directed the concerned police station to register the FIR. However, from the order dated 12.07.2011 passed by this Court it is revealed that the respondent No. 2 herein had not pointed out the fact that he had already approached the learned Chief Judicial Magistrate by filing a private complaint wherein the learned Magistrate has passed an order of inquiry u/s. 202 of Code of Criminal Procedure. Thus, by suppression of the aforesaid material fact, the respondent No. 2 got the order from this Court. It is further revealed that on the basis of the direction issued by this Court, FIR being C.R No. I-79/2011 came to be registered against the petitioner and others wherein the petitioner is shown as accused No. 5. It is surprising that after registration of the FIR being C.R No. I-79/2011 with Kamlabaug Police Station on 17.07.2011, the respondent No. 2 submitted an application before the Magistrate for withdrawal of his private complaint and the learned Magistrate by an order dated 27.09.2012 permitted respondent No. 2 to withdraw the said complaint. The said order is produced on page 49 of the compilation. 8. However, after the registration of the FIR being C.R No. I-79/2011, the Investigating Officer has carried out the investigation and filed ‘A’ summary report before the learned Magistrate. Learned Magistrate accepted the said ‘A’ summary. The said order is produced at page 49 of the compilation. However, on the basis of the objections raised by the respondent No. 2, learned Magistrate directed the Investigating Officer to record statements of the concerned witnesses and thereafter, the I.O once again filed ‘A’ summary report before the learned Magistrate. Learned Magistrate accepted the said ‘A’ summary. The said order is produced at page 49 of the compilation. However, on the basis of the objections raised by the respondent No. 2, learned Magistrate directed the Investigating Officer to record statements of the concerned witnesses and thereafter, the I.O once again filed ‘A’ summary report before the learned Magistrate. However, on that stage, learned Magistrate has not accepted the ‘A’ summary report and issued the process against all the accused including the present petitioner. 9. Thus, from the aforesaid chronology of facts and events, it is clear that the respondent No. 2 has abused the process of the Court. Even otherwise, so far as present petitioner is concerned, even the allegations made against the petitioner are taken as it is, ingredients of the alleged offence are not made out against the petitioner. Thus, in view of the aforesaid facts and circumstances of the present case, learned Magistrate has committed an error while issuing the process against the petitioner by an order dated 17.09.2012 10. It is now well settled that when the ingredients of the alleged offence are not made out in the FIR, the same can be quashed. If there is an abuse of the process of the court in initiating the criminal machinery, FIR or complaint can be quashed. In the present case, as discussed hereinabove, ingredients of the alleged offence are not made out against the petitioner in the i impugned FIR during the course of investigation and therefore the Investigating Officer has filed ‘A’ summary before the Magistrate. Hence, the learned Magistrate is not justified in issuance of process against the petitioner. It is also clear from the record that respondent No. 2 has abused the process of the Court. Thus, with a view to secure the ends of justice the impugned FIR being C.R No. I-79/2011 registered with Kamlabaug Police Station and the order dated 17.09.2012 passed by learned Chief Judicial Magistrate, Porbandar of issuance of process against the petitioner only are hereby quashed and set aside. Rule is made absolute.