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2017 DIGILAW 781 (GUJ)

Jayeshbhai Kantilal Bhatt v. State of Gujarat

2017-04-11

Z.K.SAIYED

body2017
JUDGMENT : Z.K. Saiyed, J. 1. Present Revision Application has been filed by the applicant (original accused) under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973, challenging the order passed below Exh. 1 dated 10.01.2017 passed by the 13th (Ad-hoc) Judicial Magistrate, First Class, Ahmedabad (Rural) whereby the learned Magistrate has ordered to issue process for the alleged offences punishable under Sections 363, 365, 386, 504, 506(2), 120B, 114, 166, 368 and 441 of the Indian Penal Code against the applicant and other accused, on a private complaint filed by respondent No. 2 i.e. Kaushik Champaklal Vankani which is now registered as Criminal Case No. 704 of 2017. 2. As per the case of the complainant, after referring his family history and his deal with Rameshbhai Dahyabhai Patel, owner of land and executed MOU with him for the purchase of land. Thereafter, it is mentioned in the complaint that an accused named in the complaint filed by him had dealing with the complainant for the purchase of said land. It is also stated that even part payment towards purchase was also paid by one of the accused named in the complaint. After narrating details about the payments and outstanding amount, it appears that dispute arose between complainant on one hand and one of the co-accused on the other. As per the case of the complainant on 16.06.2016, the complainant was called near Manav Mandir Petrol Pump at drive-in road and co-accused named in his complaint came in Innova Car and asked the complainant to sit in the car and thereafter car was started. One of the co-accused Ghanshyambhai threatened him to return back him Rs. 85 lacs or else he would be implicated in a false case. Co-accused Ghanshyambhai has also threatened him that he knows present applicant who is high ranking officer of Ahmedabad Crime Branch. Thus, it is stated that he was taken to the crime branch office in the said car where co-accused Ghanshyambhai and Jinabhai deleted SMSs contained in the mobile phone of the complainant. The complainant was taken to the chamber of the present applicant where it is alleged the applicant asked him to return back the amount, to which, because of fear, he said that it would be paid within 10 days. The complainant was taken to the chamber of the present applicant where it is alleged the applicant asked him to return back the amount, to which, because of fear, he said that it would be paid within 10 days. It is alleged that thereafter, outside his office, he was made to sit on a bench in the open area under the sun. Again at about 5 o'clock in the evening, he was taken to the chamber of the present applicant where it is alleged that the applicant told him that he has 10 days and 11th day is of him. It is also alleged that he returned back the money of Jinabhai and thereafter he was allowed to go at his home. 2.1 Thus, it is alleged he was kidnapped in a car taken to the crime branch and the applicant against law has helped co-accused named in the complaint and threatened him and thereby the present applicant committed criminal offence. It is alleged in the complaint that on 19.06.2016 with regard to the incident the Honourable Chief Minister, Collector and Commissioner of Police, Ahmedabad have been informed in writing but nothing has done. 3. Learned advocate Mr. Umesh A. Trivedi for the applicant, argued that present complaint is filed on 24.06.2016 against the applicant and other co-accused in the Court of Chief Judicial Magistrate, Ahmedabad (Rural). On that day, it was kept for verification on 19.07.2016. After recording verification on 19.07.2016, the learned Chief Judicial Magistrate ordered to hold inquiry under Section 202 of the Code of Criminal Procedure, 1973 and thereafter, the complaint was transferred to 14th Additional Magistrate for the purpose of further inquiry into the same. It is contended that without holding any further inquiry, the 13th (Ad-hoc) Judicial Magistrate First Class, Ahmedabad (Rural) straightaway issued the process against the applicant. It is contended that the learned Magistrate was not sitting in appeal over the decision of Chief Judicial Magistrate to hold inquiry under Section 202 of the Code and thereafter it was transferred to learned Magistrate. Therefore, unless and until, further inquiry into the case of the complainant is conducted the learned Magistrate could not have straightaway issued the process. It is not that the said complaint was first presented before him and after satisfying himself from the averments in the complaint and verification/deposition of complainant on oath, he issued the process. Therefore, unless and until, further inquiry into the case of the complainant is conducted the learned Magistrate could not have straightaway issued the process. It is not that the said complaint was first presented before him and after satisfying himself from the averments in the complaint and verification/deposition of complainant on oath, he issued the process. Thus, the order impugned suffers from total non-application of mind. From the order impugned, it is also not clear what further inquiry he has made. If process was to be issued, the learned Chief Judicial Magistrate while ordering inquiry under Section 202, if satisfied, could have straightaway issued the process and then transferred the case to the learned Magistrate. The learned Magistrate is subordinate to learned Chief Judicial Magistrate who ordered to hold inquiry under Section 202, cannot review the order passed by the learned Magistrate and instead of conducting inquiry under Section 202, he cannot straightaway issue the process. Therefore, the order impugned before this Honourable Court is illegal and suffers from non-application of mind. 3.1 Learned advocate for the applicant further contended that even below the complaint there is no list of witnesses attached to it. Thus, the institution of such complaint lacks bonafide on the part of the complainant. It is further argued that even computerized typed copy of the complaint is seen, there is no column of accused shown in it. The names of accused and the column of accused is handwritten without there being even age or addresses of any of the accused mentioned in the same. It is further argued that the present complaint filed by the respondent No. 2 herein is a counterblast to an FIR filed by Jinabhai Ramjibhai Dudhat dated 23.06.2016 which is at Page 14 to the compilation. It is further argued that even presuming the allegations leveled against the present applicant without admitting to be true, the FIR at page 14 filed by Jinabhai Dudhat against the present respondent No. 2 i.e. the complainant, it is clear that the City Crime Branch, after looking at the grievance of said Jinabhai Dudhat advised him that no offence is committed in Ahmedabad jurisdiction and, therefore, the first informant of the said FIR was directed to file the same within Vadodara Rural jurisdiction. 3.2 Mr. 3.2 Mr. Trivedi further argued that as Joint Commissioner of Police Crime Branch, Ahmedabad, he owes public duty towards the citizens who approaches him for their several grievances. The applicant cannot evade facing citizens but he is supposed to guide them properly. Therefore, even presuming without admitting that co-accused Jinabhai Dudhat approached the applicant, he has filed the FIR within the jurisdiction police station at Karjan Police Station as advised by Crime Branch Police. The said fact is stated in the FIR which is a public document, that too, filed against the present respondent No. 2 - complainant of the present case. Therefore, genuineness of said FIR and it being public document cannot be doubted. 3.3 Mr. Trivedi further argued that not only the present respondent No. 2 herein - complainant is having criminal antecedents and he is convict of NDPS Act offence who has undergone the sentence awarded by the competent Court. Not only that there is another offence of such land dealing at Naranpura Police Station also. The respondent No. 2-complainant filed reply wherein there is no denial to the said assertion. 3.4 It is further the contention of Mr. Trivedi that summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. 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. In support of the said contention, Mr. Trivedi has relied on a case "Pepsi Foods Limited v. Special Judicial Magistrate reported in AIR 1998 SC 128, more particularly after analyzing the law on the point, the conclusion recorded at para-28 of the reported decision. 3.5 It is the further contention of Mr. Trivedi that inquiry under Section 202 is a check to prevent false and vexatious complaint being filed. 3.5 It is the further contention of Mr. Trivedi that inquiry under Section 202 is a check to prevent false and vexatious complaint being filed. 3.6 To a query from this Court regarding directly approaching this Court by way of revision, it was argued by Mr. Trivedi, this Court is having concurrent jurisdiction and there is no bar directly approaching this Court by way of revision. However, he drew the attention of this Court to a judgment reported in AIR 2007 SC 2522 wherein the Central Bureau of Investigation had directly approached the High Court by way of revision which was approved by the Supreme Court. He has also further relied on Full Bench Decisions of Kerala High Court as also Himachal Pradesh High Court on the same issue reported AIR 1978 Ker 131 (FB) and AIR 1980 SC (HP) 36 (FB) as also 1997 CrLJ 549 . Though the judgments of other High Courts are not binding to this Court but it has a persuasive value. It is further argued that those judgments cannot be overlooked only because it is by other High Courts. 3.7 To a further query about order impugned issuing process is interlocutory or not and thereby revision application is barred or not, learned advocate Mr. Trivedi argued that if the contention of the applicant is believed and order is set aside, it puts an end to the case and, therefore, it is a final verdict and not an interlocutory order. In support of the said contention, he has relied on the cases reported in AIR 1999 SC 1028 , 2009 CrLJ 2595 , 2009 CrLJ 3833 , 2007 CrLJ 3915 and 2003 CrLJ 3795 . 3.8 Mr. Trivedi further contended that even presuming without admitting the allegations leveled in the complaint to be true, that offence alleged to have been committed while acting or purporting to act in the discharge of official duty of the applicant. It is further contended that looking to the averments in the complaint itself it has reasonable connection with his official function which is very much clear from the averments in a public document like FIR which is filed against the present respondent No. 2 - complainant. The complainant is supposed to disclose true and correct facts before the Honourable Court so that it can ascertain whether there is any statutory bar in entertaining the complaint against a particular accused. The complainant is supposed to disclose true and correct facts before the Honourable Court so that it can ascertain whether there is any statutory bar in entertaining the complaint against a particular accused. It is further contended that the complainant has come out with one sided story involving the applicant by suppressing, to the good luck of the applicant, the other part of the story revealed from the public document like an FIR which is an FIR filed against respondent No. 2 - complainant. Therefore, even prima-facie there is no clear case that the assertion made by the respondent No. 2 - complainant herein is correct one. It is from the documents itself clear that the assertion by respondent No. 2 - complainant herein that the applicant threatened him falls to the ground. Even presuming that allegation to be true, that the accused and even the present respondent No. 2 - complainant met him, they were directed to approach jurisdiction police station at Vadodara Rural and therefore, the alleged offence against the applicant has reasonable nexus with the performance of his duty and, therefore, without there being sanction under Section 197 of the Code of Criminal Procedure, 1973, no cognizance could have been taken by the learned Magistrate and no process could have been issued against him. In support of the said submission, learned advocate Mr. Trivedi has relied on AIR 2015 SC 2022 , AIR 2005 SC 2257 , AIR 2001 SC 2547 and AIR 2006 SC 1599 . 3.9 On the abovesaid arguments, learned advocate for the applicant prayed that the order impugned by which process is issued against him be quashed and set aside. 4. On other hand, learned advocate Mr. Himanshu Desai for respondent No. 2 - original complainant, has argued that present application cannot be filed by the applicant straightway before this Court as this Court has no revisional power to entertain present application. He read the order of learned Chief Judicial Magistrate and contended that after passing the order, the Criminal Case was transferred to the Court of learned 13th Additional Judicial Magistrate First Class, having jurisdiction of Vastrapur area and order was passed on 10.1.2017, after 5 months deliberations to examine the matter. He read the order of learned Chief Judicial Magistrate and contended that after passing the order, the Criminal Case was transferred to the Court of learned 13th Additional Judicial Magistrate First Class, having jurisdiction of Vastrapur area and order was passed on 10.1.2017, after 5 months deliberations to examine the matter. He further submitted that learned Judicial Magistrate has examined the documentary evidence produced before him and he formed opinion that there is sufficient iota of evidence regarding offence and when cognizance was taken and therefore, learned Magistrate is empowered to issue process. He further submitted three documents produced by the applicant, are not considered. He further submitted that on 19.6.2016, the complaint was lodged, after applications were sent to the Hon'ble Chief Minister, Collector, and the copies were sent to Chief Secretary as well as Additional Chief Secretary, Home Department and Director General of Police. He therefore, prayed to dismiss the present Criminal Revision Application. 5. The learned Additional Public Prosecutor has argued that as per the provisions of Section 202 of Code of Criminal Procedure, for inquiry and issuing of process, that procedure is required to be followed. If it is not followed properly and legally, then that order is required to be set aside. He further submitted that as per the provisions of Section 197 of the Code of Criminal Procedure, when prima facie, it is established that under colour of duty, if the act is committed by any public servant then previous sanction is required and in absence of previous sanction, if the process is issued, then the order issuing process is required to be set aside. 6. I have heard Mr. Trivedi, learned advocate for the applicant, Mr. Himanshu Desai, learned advocate for respondent No. 2 and Mr. Shah learned APP at length. I have also gone through the memo of Revision Application as also annexures annexed along with it and the affidavit-in-reply filed by respondent No. 2. 7. First of all, directly approaching this Court in a Revision Application prompted respondent No. 2 to object entertaining Revision Application. The contention of respondent No. 2 that like bail application, the applicant may be asked to approach the Sessions Court first by way of Revision. 7. First of all, directly approaching this Court in a Revision Application prompted respondent No. 2 to object entertaining Revision Application. The contention of respondent No. 2 that like bail application, the applicant may be asked to approach the Sessions Court first by way of Revision. After hearing the learned counsel for the respective parties and going through the provisions as also the precedents cited before me, I am of the view that there is no prohibition in approaching first by way of revision the High Court. Though the judgments of other High Courts are not binding to this Court but it has certainly a persuasive value and I am in full agreement with precedents relied on by learned advocate Mr. Trivedi, more particularly, the judgments reported in AIR 2007 SC 2522 , AIR 1978 Ker 131 (FB) and AIR 1980 HP 36 , I am of the view that the applicant cannot be compelled under the revisional jurisdiction which is concurrent to file the Revision Application in the Sessions Court first before approaching the High Court. 8. I find force in submission of learned advocate Mr. Trivedi once Chief Judicial Magistrate ordered to hold a inquiry under Section 202 after recording the verification of the complainant on oath and transferred the case to this subordinate Judicial Magistrate in rank also, without conducting any inquiry under Section 202 i.e. further examining any witnesses and considering the case, learned Magistrate could not have issued process. When, for the purpose of conducting further inquiry under Section 202, a case has been transferred to the learned Magistrate without further inquiry, learned Magistrate could not have reached to the conclusion. The submission of learned advocate for respondent No. 2 that the order holding inquiry is passed on 19.07.2016 and the order impugned issuing process has come to be passed on 10.01.2017. Therefore, it was contended that it is not overnight the learned Magistrate has issued the process, after conducting inquiry for nearly five months, the learned Magistrate has issued the process. I find no force in the submission of learned advocate Mr. Desai for respondent No. 2 as from the order itself it is clear that not a single witness is examined after the case was transferred to the learned Magistrate by a learned Chief Judicial Magistrate. The argument of learned advocate Mr. I find no force in the submission of learned advocate Mr. Desai for respondent No. 2 as from the order itself it is clear that not a single witness is examined after the case was transferred to the learned Magistrate by a learned Chief Judicial Magistrate. The argument of learned advocate Mr. Trivedi that if at all the learned Chief Judicial Magistrate before whom the complaint was presented, if he was satisfied after examining the complainant on oath that a prima-facie case is made out, he would not have ordered holding inquiry under Section 202 of the Code of Criminal Procedure, 1973. Therefore, in substance and reality the learned Magistrate has not conducted any inquiry as contemplated under Section 202 of the Code before issuing process against the applicant. Therefore, on that ground, the order of learned Magistrate issuing process against the applicant is required to be quashed and set aside. 9. The another bone of contention of learned advocate Mr. Trivedi for the applicant that the applicant being public servant, he is protected from a vexatious proceedings and for that a protection under Section 197 of the Code is granted to such public servant. I find that in the cause-title of the complaint where column of accused was blank and it is handwritten, the bonafides of respondent No. 2 appears to be doubtful. It might have prompted the learned Chief Judicial Magistrate before whom the complaint is first presented holding inquiry under Section 202 of the Code for full satisfaction about the allegations leveled in the complaint itself or no false or frivolous prosecution is initiated against a public servant. Not only that column of accused which is hand written there also no age of accused or even addresses of any of the accused are mentioned in it. Therefore prima facie it appears that the allegations leveled in the complaint does not inspire any confidence qua the applicant more particularly, a public document by way of an FIR filed by co-accused of the present complaint which proves that prima-facie the allegations leveled against the applicant may not be true. For what ulterior motive, it is made is an another question to be determined at appropriate stage. For what ulterior motive, it is made is an another question to be determined at appropriate stage. If the assertion in an FIR which is at Page 14 more particularly at Page 20 is seen and compared with the allegations leveled in the present complaint which is at Page 2 it is clear that applicant cannot be said to have uttered those words as alleged by respondent No. 2 and even if it is uttered, it is exaggeration and presuming it to be true, it has reasonable nexus in discharge of his official duty and, therefore, no process could have been issued against the applicant without there being any sanction as envisaged under Section 197 of the Code. 10. In that view of the matter, the order dated 10.01.2017 passed by 13th (Ad-hoc) Judicial Magistrate, First Class, Ahmedabad (Rural), vide Criminal Case No. 704 of 2017 passed in Criminal Inquiry No. 217 of 2016, is hereby quashed and set aside qua the applicant. As a necessary corollary, the summons issued against the applicant which is at Page 1 is also hereby quashed and set aside. 11. The application is allowed, in the above terms. Rule is made absolute, accordingly.