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Gujarat High Court · body

2016 DIGILAW 2049 (GUJ)

SHANKARLAL v. MISTRY VS STATE OF GUJARAT

2016-09-16

A.Y.KOGJE

body2016
JUDGMENT : A.Y. KOGJE, J. 1. This petition under Article 226 of the Constitution of India and under Section 482 of the Criminal Procedure Code is filed praying inter alia as under:- “(B) Your Lordships may be pleased to quash and set aside the Criminal Case/Court Inquiry No.18 of 2009 pending before the learned. J.M.F.C., Petlad; (C) Your Lordships may be pleased to declare that there is no provision envisaged in the Code of Criminal Procedure, which envisages that the Ld. Magistrate can order denovo inquiry after report of inquiry/investigation u/s 202 is submitted, and as a result thereof Your Lordships may be pleased to quash and set aside order dtd. 05-07-2011 passed by the ld. J.M.F.C. Petlad, in Criminal Case/Court Inquiry No.18 of 2009. 1.1 Essentially, therefore, the petition is for quashing the Criminal Case being Court Inquiry No.18 of 2009 before the J.M.F.C., Petlad and at the same time, praying for quashing and setting aside of an order dated 05.07.2011 (Annexure-D). 2. The facts in nutshell are that the respondent No.2, who happens to be the sister and relative of the petitioners, filed written complaint before the Court of J.M.F.C., Petlad, which came to be numbered as Court Inquiry No.18 of 2009. In her complaint, she alleged offences under Sections 417, 420, 463, 464, 465, 467, 468, 471, 120-B and 114 of the Indian Penal Code against the six accused persons, of whom four are the present petitioners. 2.1. It is alleged in the complaint that her uncle Sonaji Motiji was staying in Petlad and was engaged in construction business. His wife had expired 20 years back and at the age of 86, on 17.12.2003, uncle Sonaji Motiji passed away without having any biological child. It is alleged that the complainant and her husband had taken care of the deceased uncle during his life time and had also helped him in his financially difficult times. The complainant also describes several properties running in the name of her uncle and claims that being a niece, she was also one of the legal heirs to the properties of deceased Sonaji. 2.2. It is alleged that whenever family used to get together, the complainant used to raise the issue of dividing the properties amongst legal heirs. At that time, the accused persons would neglect the issue and would convince her that the same would be done at later point of time. 2.2. It is alleged that whenever family used to get together, the complainant used to raise the issue of dividing the properties amongst legal heirs. At that time, the accused persons would neglect the issue and would convince her that the same would be done at later point of time. However, when the accused persons did not respond, the complainant was constrained to issue legal notice on 15.05.2008 and in response to such legal notice, the accused persons answered that deceased Sonaji Motiji had executed a will dated 01.07.2003 and according to such will, all the properties were bequeathed in favour of the petitioners and that accordingly, revenue record has been mutated. 2.3. It is from this reply, the complainant came to know about existence of such will, which according to her is bogus and fabricated and on the basis of such bogus and fabricated will, revenue entries have been mutated in connection with the properties of deceased Sonaji Motiji. 2.4. It is alleged in the complaint that the complainant had managed to receive copy of the will and got the signature of deceased Sonaji Motiji compared with the natural handwriting of deceased Sonaji Motiji from Handwriting Expert, who has clearly given an opinion that the signature on the will is not the same as the natural handwriting of the deceased. On the basis of this main allegation and evidence along with other allegations, the complaint came to be filed on 01.05.2009. On the sake day, J.M.F.C. passed an order under Section 202 of the Criminal Procedure code for police inquiry. 2.5. Upon inquiry, PSI, Petlad Town Police Station submitted report dated 07.09.2009. This report was placed for hearing along with notice to the complainant and thereafter on 05.07.2011, J.M.F.C., Petlad was pleased to pass the impugned order holding that the inquiry was not satisfactory as the inquiry did not focus at all on the allegations of forgery and therefore, called for deeper probe, keeping in view the specific allegations of forgery. 2.6. It is at this stage that the petitioners have approached this Court with the aforementioned two prayers. 3. Heard learned Advocate Shri Nikhil Kariel for the petitioners, learned Senior Advocate Shri K.B.Anandjiwala for respondent No.2-original complainant and learned APP Ms.Punani for respondent No.1-State. 4. 2.6. It is at this stage that the petitioners have approached this Court with the aforementioned two prayers. 3. Heard learned Advocate Shri Nikhil Kariel for the petitioners, learned Senior Advocate Shri K.B.Anandjiwala for respondent No.2-original complainant and learned APP Ms.Punani for respondent No.1-State. 4. Insofar as challenge to the order dated 05.07.2011 is concerned, it is the order under Section 202 of the Criminal Procedure Code and the Magistrate is still awaiting the report of the inquiry. At this stage, the question is whether the petitioners, who are named in the complaint, have any locus to challenge at a stage where petitioners are yet to be recognized as accused in the Court of law. The law being very clear on this aspect, this Court need not go any further. However, Shri Kariel for the petitioners during the course of arguments submitted that he would not press for the prayer Clause-8(C). However, would like to persuade this Court insofar as powers under Section 482 of the Criminal Procedure Code for quashing the entire Criminal Case No.18 of 2009 as the same being clear abuse of process of law. He submitted that the petitioners are legitimate heirs of the deceased. He submitted that petitioner No.1 was adopted by deceased and in any case, the properties would dwell upon him. So, there was no need for him for forging or fabricating any will. He submitted that the purpose behind filing such a complaint and that too against her own real brother is nothing but an attempt to twist the arms of the petitioners to get some part in the properties of the deceased. He drew attention of the Court to the exchange of legal notices between the petitioner and the husband of the complainant to point out that both, husband and wife are out to get their pound of flash from the properties of the deceased uncle one way or the other and therefore, on one hand the husband is claiming to have given loan to the deceased uncle of a huge amount of Rs.1,20,00,000/-, which he is claiming back and on the other hand, wife is claiming share in the properties being legal heir of the deceased. This inconsistency in their demand itself demonstrates the die hard attempts to receive share in the properties of the deceased uncle. 5. This inconsistency in their demand itself demonstrates the die hard attempts to receive share in the properties of the deceased uncle. 5. As against this, learned Senior Advocate Shri Anandjiwala appearing on behalf of the original complainant submitted that the petitioners have no locus to bring in the petition for quashing at the stage when the petitioners are not even recognized as accused in the Court of law. It is only at the stage where inquiry report is called for and therefore, no locus would arise for even quashing of the complaint. He submitted that the allegations made in the complaint are serious and require full inquiry and investigation. The petitioners have not made out any case that the allegations are outrightly untrue or of such a nature as if the offence itself has not taken place. He submitted that at this stage, the accused has no role to play and only right recognized by the Criminal Procedure Code after filing of complaint and prior to issuance of process is that of the complainant alone and therefore, even under Section 482, the petitioners would not have any right to approach this Court for quashing of complaint where it is yet to be established whether the petitioners are accused or not. He submitted that upon report being filed, it will still be open for the Magistrate to accept the report or refuse the report. In case the report is accepted and the Magistrate may proceed to issue process under Section 204, it is at that stage that the petitioners herein would be considered as accused and at this stage, the accused get right to represent in the Court of law. Till such time, it is only the right of the complainant which is recognized by the Criminal Procedure Code. In case, the report is against the complainant and his complaint is to be dismissed, at that stage, it is incumbent upon the Magistrate to call upon the complainant so as to give his reaction on such report. Therefore, the Criminal Procedure Code recognizes the right of the complainant only, but there is no mention of any right of an accused at a stage prior to issuance of process under Section 204. 6. Learned A.P.P. submitted that the petition is premature. There are several disputed questions of facts. Therefore, the Criminal Procedure Code recognizes the right of the complainant only, but there is no mention of any right of an accused at a stage prior to issuance of process under Section 204. 6. Learned A.P.P. submitted that the petition is premature. There are several disputed questions of facts. She submitted that there are clear cut allegations which bring out the ingredients of the offence alleged. Over and above that, there is some evidence also in the form of opinion of the Handwriting Expert which cannot be brushed aside. Therefore, at a stage where only inquiry report is called for, this Court may not interfere with the process and hence, requested for dismissal of the petition. 7. Learned Advocate Shri Kariel for the petitioners emphasized that he is not questioning the order dated 05.07.2011, but he is questioning the existence of the complaint on the Board of the Magistrate itself, as according to him, maintaining such a complaint would be nothing but an abuse of process of law and so to prevent the abuse of process of law, inherent powers of the Court under Section 482 should be exercised by this Court. He submitted that this Court is bound to exercise powers under Section 482 where the Court finds that there is abuse of process of any Court. This Court is also bound to exercise powers under Section 482 where it is necessary to secure the ends of justice. 8. Shri Kariel for the petitioners relied upon a judgment of this Court in the case of Nayak Saheb, Branch Manager, Bombay Mercantile Co-op. Bank Ltd. & Ors. Vs. Rahul Kanubhai Ashar & Ors., reported in 1995 (1) GLH, page No.376 to support his contention that powers under Section 482 could be exercised even when complaint before the Court of Magistrate is at the stage of Section 202 of the Criminal Procedure Code. Considering the facts of the case before the Court in the aforesaid judgment, the High Court came to conclusion that the order under Section 202 passed by the Magistrate was a mechanical order and the allegations levelled therein would not even disclose the basic ingredients of the offence whereas in the instant case, there are clear cut allegations and there is some evidence in support of the allegations, which, obviously, this Court would not weigh while exercising jurisdiction under Section 482. 9. 9. Be that as it may, once the petitioners having given up challenge to the powers exercised by the Magistrate in passing the order calling upon for inquiry report under Section 202, this issue could not be stretched any further. 10. Insofar as the contention of exercise of powers under Section 482 for quashing the entire complaint at this stage, it would be necessary to understand that Section 482 does not put any cap on the inherent powers of the High Court. Considering the language of Section 482 of the Criminal Procedure Code and applying the same to the facts of this case, the petitioners have not approached this Court with any prayer which would amount to giving effect to any order which is made under this Code. The High Court can use its powers under Section 482 to prevent abuse of process of any Court. In the instant case, insofar as the petitioners are concerned, it cannot be said that they are facing any process of any Court till any proceedings are instituted against them under the provisions of the Criminal Procedure Code. For example if the process is issued under Section 204 and issuance of such process is held to be abuse of the Court of law, in such case, Section 482 can be invoked or in case after receiving a written complaint, the Magistrate issues an order under Section 156(3) which marks launching of criminal machinery into motion against the petitioner, at that stage, it can be said that the petitioners are facing process of Court and if such process is abuse then the petitioners can invoke Section 482. In the instant case, after filing of the complaint and till issuance of the process against the accused persons, the only right recognized by the Criminal Procedure Code is that of the complainant and therefore, the case of the petitioners also does not fall in that bracket to prevent abuse of process of any Court. 11. Insofar as merits are concerned, this Court is convinced that there exists at least allegations supported by some evidence, the analysis of which is the subject matter of the complaint and the report to the Magistrate. 11. Insofar as merits are concerned, this Court is convinced that there exists at least allegations supported by some evidence, the analysis of which is the subject matter of the complaint and the report to the Magistrate. This still being the question open before the Magistrate, this Court would not like to give an opinion about the truthfulness of the allegations or sufficiency of evidence in connection with the offence alleged in the complaint. 12. This Court is supported in its view by a judgment of this Court in (Sunil Lulla v. State of Gujarat), Special Criminal Application No.1829 of 2010 dated 01.05.2015. The relevant portion of para-16 of the said judgment reads as under : “Thus, in view of the decision rendered by this Court, it is clear that the person against whom allegations are made in the complaint becomes an accused only after the issuance of process under Section 204 of the Code. At the stage of enquiry under Section 202 of the Code, such person named in the complaint has no right to participate in the enquiry because he is not an accused. This Court has further observed that even if the police interrogation against the persons complained in the complaint under Section 202 investigation, they would be interrogated only in their capacity as witnesses because they are not to be treated as accused at the stage of magisterial enquiry under Section 202 of the Code.” 13. In view of the aforesaid, the petition, being premature and devoid of any merits, deserves to be dismissed and is accordingly dismissed. Rule is discharged. I.R. is vacated. 14. Considering the period that has lapsed in the present proceedings, it would be appropriate for this Court to direct the Magistrate to accord some priority to this complaint and carry proceeding further in expeditious manner. Petition dismissed.