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Gujarat High Court · body

2023 DIGILAW 1161 (GUJ)

Amubhai Dipubhai Gohil v. State Of Gujarat

2023-12-08

A.Y.KOGJE

body2023
JUDGMENT : (A.Y. Kogje, J.) [1] These two applications are filed on the same grounds raising same contentions and arising out of same facts. At the request of learned advocates appearing for the respective parties, both the matters are taken up for joint hearing and disposal. The facts are recorded from the lead matter being Criminal Misc. Application No.7940 of 2013. [2] The application is filed under Section 482 of the Code of Criminal Procedure challenging the order dated 07.05.2013 by the learned 3rd Judicial Magistrate First Class, Court No.3, Surat in Criminal Misc. Application No.391 of 2013 and also praying for quashing of FIR filed with Katargam Police Station being C.R.No.I-61 of 2013. [3] This Court vide order dated 31.05.2013 had admitted matter and granted interim relief in terms of para-9(c) by which the further investigation and all the proceedings pertaining to the aforesaid C.R. qua the present applicants were ordered to be stayed. [4] At the outset, learned advocate has submitted that the application was filed on the limited ground that the judicial magistrate has no jurisdiction to issue the directions of registering an FIR and therefore, while passing the impugned order, the Magistrate has transgressed his jurisdiction and therefore, has pleaded in ground 5(f). Learned advocate submitted that the applicant had filed the application only on the question of jurisdiction of the Magistrate, but is not challenging the same on merits. [4.1] Ld. Advocate for the petitioner has submitted however, in view of the decision of the Apex Court in case of Lalitakumari v/s. State of Uttarpradesh, reported in, 2014 (2) SCC 1 , as also on account of the provision contained in S.156(3) of cr.p.c. challenge to the impugned order on the ground of lack of jurisdiction will also not survive. [4.2] Learned Advocate has raised a question of law based on the facts of this case by contending that upon receipt of written complaint, the Judicial Magistrate First Class had passed an order calling for the report from the police and therefore, had issued an order under Section 210 of the Code of Criminal Procedure (for short “the Code”) thereby taking cognizance of the offense and therefore, the impugned order directing filing of an FIR would amount to going back to the pre-cognizance stage which is not permissible as per the judicial pronouncement of the Apex Court. [5] The question of law raised by the learned advocate for the applicant though not pleaded in the application, the same is permitted to be raised and at this stage with necessary oppurtunity to the respondents . learned advocate has submitted that the case be dealt with purely on this question alone and the applicant is not contesting the same on merits. [6] The facts therefore, necessary for the purpose of dealing with the present applications are that the respondent No.2 had filed Criminal Misc. Application No.391 of 2013 with the Court of Judicial Magistrate First Class (Court No.3) at Surat, praying, interalia, for an order under Section 156(3) of the Code seeking direction to register an FIR to the concerned police station for offense alleged against the four accused mentioned in the complaint which included the present two applicants. The allegations are in connection with the offenses under Sections 406, 409, 420, 467, 468, 471, 34 and 120B of the IPC. [6.1] Pursuant to the complaint thus received, the Court of the Judicial Magistrate First Class passed an order dated 16.04.2013, wherein the police was directed to submit a report on or before 24.04.2023. Pursuant to the report thus submitted, the Court of Magistrate proceeded to pass an impugned order dated 07.05.2013 directing the Katargam Police Station that an application dated 04.12.2010 given by the respondent No.2-complainant to the Police Commissioner be registered as an FIR under Section 154(1) of the Code within a period of three days. [7] Learned advocate for applicant has therefore, argued that when the Court of the Magistrate passed an order on 16.04.2013 directing that in connection with the complaint being Criminal Misc. Application No.391 of 2013 made by the respondent, wherein it has been narrated that the written complaint was given containing the same allegations on 04.12.2010 to the police authority. The police authority was directed to file a report upon the complaint thus made in the year 2010 and submit a report on or before 24.04.2013 and therefore, the order was passed as per Section 210 of the Code. [8] It is submitted that when the Court of the Magistrate passed an order under Section 210 of the Code, the Magistrate is deemed to have taken the cognizance of the offense. [8] It is submitted that when the Court of the Magistrate passed an order under Section 210 of the Code, the Magistrate is deemed to have taken the cognizance of the offense. It is submitted that as per the decision of the Apex Court in case of Sankaran Moitra v/s. Sadhna Das and Another, reported in 2006 (4) SCC 584 , the Magistrate has taken the cognizance of the offense and therefore, it is not permisssible for the Magistrate to once again go back to the stage of pre-cognizance to pass the impugned order dated 07.05.2013 directing registration of the FIR on the complaint dated 04.12.2010 made by the respondent to the Commissioner of Police. In this connection, learned advocate has relied upon in case of Rameshbhai Pandurao Heuau v/s. State of Gujarat, reported in (2010) 4 SCC 185 . [9] Learned advocate has therefore, submitted that there is a clear error in law committed by the Magistrate that after taking cognizance of the offense as directed by the impugned order to register an FIR. [10] Learned Additional Public Prosecutor has objected to the applications by submitting that pending the application before this Court, the investigation has proceeded as there were only two accused in whose favour the investigation was stayed, whereas the investigation qua other two accused (non petitioners), has proceeded and resulted in filing of the charge-sheet. It is submitted that the investigation thus carried and report submitted clearly gives out a role played by the applicants that would amount to offense and therefore, as the matter has progressed, it would be appropriate now to interfere with the investigation at the behest of the applicants. [11] Learned Additional Public Prosecutor further submitted that from the report of the Investigating Officer, the role played by the present two applicants is rather major as compared to the role attributed to the other accused, who have been charge-sheeted. It is submitted that for the interim relief in favour of the applicants of the present case, the Investigating Officer would have proceeded to file the charge-sheet. Learned advocate also submitted that the impugned order is required to be treated as a final order and therefore, the applicants had alternative remedy of filing a revision application and therefore also the applications may not be entertained. [12] Learned advocate for the respondent No.2 submitted that the procedure adopted by the Magistrate is justified. Learned advocate also submitted that the impugned order is required to be treated as a final order and therefore, the applicants had alternative remedy of filing a revision application and therefore also the applications may not be entertained. [12] Learned advocate for the respondent No.2 submitted that the procedure adopted by the Magistrate is justified. It is submitted that the respondent-complainant had approached the Court of the Magistrate by a written complaint and under Section 190 of the Code, the Magistrate is competent to take cognizance in three contingencies mentioned in the section. It is also open for the Magistrate under Section 202 of the Code and postponed issuance of process under Section 202 of the Code. It is submitted that in the instant case, the Magistrate has passed an order which would amount to only postpone the issuance of process before the Magistrate could apply the mind and pass any further orders either under Section 203 of the Code or issue process under Section 202 of the Code and for that purpose, the Magistrate has passed an order in the facts of present case dated 16.04.2013 and therefore, the same cannot be treated as an order under Section 210 of the Code. [13] Learned Additional Public Prosecutor as well as learned advocate for the respondent No.2 jointly submitted that as now much water has flown and facts have come on record of the investigation about the culpability of the applicants by quashing and impugned order, the proceedings taken thereafter, cannot be set at naught. [14] In rejoinder, learned advocate for the applicants submitted that if the Investigating Agency has found evidence on record and the Magistrate is convinced about the nature of evidence implicating the accused, then neither the Investigating Agency nor the Court is without remedy against the applicants. It is always open for the Court before whom a report has been placed upon due investigation by police authority at any stage during the trial, the Magistrate can resort to the provision of Code of Criminal Procedure to arraign any person against whom the evidence is available. [15] Heard learned advocates for the parties and perused the documents placed on record. [15] Heard learned advocates for the parties and perused the documents placed on record. The moot question of law has arisen from the facts of the present case which the court may have to consider that whether an order passed by the Magistrate on 16.04.2013 would amount to taking of cognizance of the offense and if yes, then whether the Magistrate has committed an error in passing the impugned order dated 07.05.2023 directing registration of an FIR by going back to a pre-cognizance stage. [16] The Court may refer to the facts to that limited extent only to deal with the question that arises. The respondent No.2 has filed a written complaint on 15.04.2013 being numbered as 391 of 2013 with the Judicial Magistrate First Class, Court No.3 at Surat and in the complaint in para-8 reference is made to a written complaint dated 04.12.2010 given by the complainant to the police authority namely Commissioner of Police, Surat praying therein for necessary direction to the concerned police station to act under Sections 154(1), (2) and (3) of the Code. Pursuant to the complaint received by the Magistrate, an order is passed on 16.04.2013 which would read as under:- “Looking to the case, it is clear that before approaching this Court, the complainant contacted the police authority for registering the complaint and for investigation. Therefore, before taking any action with regard to the application, it is necessary to take into consideration the action taken, if any, by the police in this connection. Hence, yadi be written to call for the Police Report and the police is directed to clearly submit their report before this Court on or before 24.04.2013. If the said case is handed over to any higher authority, PSI of Katargam shall submit detailed report accordingly. 16.04.2013 Sd/- I/c. Judicial Magistrate First Class Third Court, Surat. [17] At this stage, it would be appropriate to refer to the decision of the Apex Court in case of Sankaran Moitra (supra) and reproduced the relevant directions contained therein in paras-78 and 79. “78. The Joint Committee of Parliament observed: "It has been brought to the notice of the Committee that sometimes when serious case is under investigation by the police, some of the persons file complaint and quickly get an order of acquittal either by cancellation or otherwise. “78. The Joint Committee of Parliament observed: "It has been brought to the notice of the Committee that sometimes when serious case is under investigation by the police, some of the persons file complaint and quickly get an order of acquittal either by cancellation or otherwise. Thereupon the investigation of the case becomes infructuous leading to miscarriage of justice in some cases. To avoid this, the Committee has provided that where a complaint is filed and the Magistrate has information that the police is also investigating the same offence, the Magistrate shall stay the complaint case. If the police report (under Section 173) is received in the case, the Magistrate should try together the complaint case and the case arising out of the police report. But if no such case is received the Magistrate would be free to dispose of the complaint case. This new provision is intended to secure that private complainants do not interfere with the course of justice." (emphasis supplied) 79. It is thus clear that before Section 210 be invoked, the following conditions must be satisfied. (i) There must be a complaint pending for inquiry or trial; (ii) Investigation by the police must be in progress in relation to the same offence; (iii) A report must have been made by the police officer under Section 173; and (iv) The magistrate must have taken cognizance of an offence against a person who is accused in the complaint case.” [18] It would be appropriate to observe that the decision in case of Sankaran Moitra (supra) is by three Hon’ble Judges of the Apex Court and were dealing with an issue of Section 197 of the Code. [19] The case before the Apex Court in case of Sankaran Moitra (supra) was a criminal complaint against the police officer which came to be challenged on the ground that such a complaint against the police officer is required to be quashed and set aside for lack of sanction under Section 197 of the Code. The facts of the case were that the complainant had made a complaint that her husband was supplying food packets at the polling booth when the erring police officers came to over and started beating her. They chased him towards lake side and continued to beat him till he fell unconscious and was brought to the hospital where he was declared dead. They chased him towards lake side and continued to beat him till he fell unconscious and was brought to the hospital where he was declared dead. It was this incident which was sought to be investigated under Sections 302, 201, 109 and 120B of the IPC where cognizance was taken by the Magistrate upon the complaint by the private complainant. A petition under Section 482 of the Code for quashing was filed as mentioned hereinabove before the High Court, however, the High Court observed that a case was not covered under Section 197 of the Code. [19.1] However, this issue was examined by the Bench consisting of three Hon’ble Judges of the Apex Court and the appeal before the Apex Court was allowed with the majority of 2:1 and the majority of the Judges had dealt with only Section 197 of the Code, but had not referred to Section 210 of the Code, whereas the minority view though decenting had also dealt with Section 210 of the Code. [19.2] This Court is concerned with the observation made in the judgment which forms a decenting part of the judgment, wherein the question which was taken up for consideration by the decenting Judge as to whether Section 197 of the Code is attracted to the facts of the case therein and sanction as required by that section is a sine qua non for prosecuting the appellant and police officer and therefore, whether the Magistrate was justified in taking cognizance of the complaint filed by the complainant and proceeding with the complaint. Second issue which took into consideration and which is pertaining to the question raised herein as to whether the case is covered under Section 210 of the Code and the private complaint filed by the complainant in the Court of Chief Judicial Magistrate against the person for offense under Section 302 of the IPC etc. could be proceeded with or required to be stayed. It is while answering the aforesaid issue that the decenting Judge proceeded to hold in para-79 which is reproduced in the preceding paras, particularly in clause-4 of para-79 indicating that before Section 210 of the Code is invoked, one of the conditions which is required to be satisfied is that the Magistrate must have taken cognizance of an offense against a person who is accused in the complaint case. [19.3] Whether this observation by a decenting Judge of the Hon'ble Apex Court is binding upon this Court as a ratio is the question which now this Court would like to answer. Such a situation was faced with by the Division Bench of Allahabad High Court in case of Sudha Tiwari v/s. Union of India and others, reported in 2011 SCC Online Allahabad 253. The issue before the Allahabad Court was pertaining to constitution amendment of a providing for reservation in admission in private unaided educational institution. While considering the aforesaid issue, the Allahabad High Court had occasioned to face the same situation while it considered the decision of the Apex Court in case of Ashok Kumar Thakur v/s. Union of India, reported in 2008 (6) SCC 1 and relying upon the minority view concluded the issue. (93rd Constitutioanl Amendment Act, 2005 inserting clause-5 in Article 15 in part- III of the Constitution, which was upheld by the Constitution Bench.). While doing so, the Division Bench of the Allahbad High Court held as under:- “25. When the Court is divided, the judgment of majority constitutes the law declared and not the view or observance of the Judges in the minority vide John Martin v. State of West Bengal, (1975) 3 SCC 836 . Where the majority has not expressed any opinion, the decision of the minority in strength, even if by a single Judge amongst five, has the effect, if the reasons are given of the judgment of the Supreme Court to be binding upon the High Court under Article 141 the Constitution of India. The principle underlying the decision is binding on the High Courts. In Ashoka Kumar Thakur's case, the question answered by Hon'ble Justice Dalveer Bhandari, namely whether the Ninety Third Amendment violates the basic structure of the Constitution by imposing reservation on unaided institutions, did arise in the case, and was apparently argued by the counsels appearing for the parties. The Hon'ble Judge posed the question and answered it by elaborate reasoning citing the entire case law on the subject on the touchstone of I.R. Coelho's case. He has not only answered the question but has also, in adopting the principles of severability of the offending party, consciously, declared the Ninety-Third Amendment as it refers only to the unaided institutions, as ultra vires the basic structure of the Constitution of India. He has not only answered the question but has also, in adopting the principles of severability of the offending party, consciously, declared the Ninety-Third Amendment as it refers only to the unaided institutions, as ultra vires the basic structure of the Constitution of India. The ratio of the decision is a binding precedent, and thus once the Constitution (Ninety-Third Amendment) Act 2005, to the extent that it refers to unaided institutions, has been held to be ultra vires, the High Courts are bound with the ratio, as to under Article 141 of the Constitution has to follow it and on the same analogy on which Article 15(5) as has been declared to be violative of the basic feature of the Constitution of India, of the right to occupation and its abridgment, the provisions of Section 4 of the UP Act No. 23 of 2006 cannot be saved, to that extent. [20] Four Hon’ble Judges had not expressed any opinion on the question whether the reservation are permissible in the unaided private educational institute and left it upon for later occasion. However, one of the Hon’ble Judge expressed a reasoned opinion that the inclusion of a private unaided institution in Article 15(5) is in violation of the basic structure of the Constitution and hence, held to be invalid. [21] Following the decision of the Allahabad High Court in Sudha Tiwari (supra), the Court has no hesitation in holding that the ratio of the Apex Court on the issue of cognizance at the stage of passing an order under Section 210 of the Code would be binding to this Court despite the same being so expressed in the minority judgment. [22] In view of the aforesaid reasoning, the Court is the view that when an order is passed by a Magistrate under Section 210 of the Code, the Magistrate is deemed to have taken cognizance of the offense against the accused in the complaint. [23] The Court will therefore, have to examine whether the order dated 16.04.2013 can be considered as an order under Section 210 of the Code. In this regard, it would be appropriate to refer to the contents of the complaint by the respondent No.2 which refers to a previous complaint dated 04.12.2010, addressed to the Commissioner of Police for necessary action. In this regard, it would be appropriate to refer to the contents of the complaint by the respondent No.2 which refers to a previous complaint dated 04.12.2010, addressed to the Commissioner of Police for necessary action. Not only that at three different places in the impugned order, the Magistrate has referred to the report being filed pursuant to the complaint given by the respondent No.2 to the Commissioner of Police. Reference thus given by the Magistrate in his order to such report presupposes a complaint by the respondent No.2 to a police authority and a positive report of the police authority of the level of Assistant Commissioner of Police making out of the ingredients of the offense indicates that there was inquiry/investigation on the basis of an earlier complaint by the respondent No.2 to the police authority. Section 210 of the Code is a procedure to be followed when there is a complaint and the police has investigated in respect of the same offense and this aspect is known to the Magistrate during the course of inquiry/trial pending before him, then it is open for the Magistrate to call for the progress made by the police investigation with regard to the same subject matter for which inquiry or trial is pending with the Magistrate. The requirement is a pending investigation with the police to invoke Section 210 of the Code where the investigation is defined under Section 3 of the Code, Clause-H which includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person authorized by the Magistrate in this behalf and therefore, the contents of the complaint given to the Magistrate and the content of the order impugned goes on to indicate that when the complaint was filed before the Magistrate there was already complaint and investigation pending before the police for which order dated 16.04.2013 was passed by the Magistrate calling for the report of the pending investigation with police with regard to the same subject matter. Therefore, when the order dated 16.04.2013 was passed, the Magistrate has taken cognizance of the offense and thereafter, called for the report. The language of the order dated 16.04.2013, in the opinion of the Court, clearly makes out a case an order under Section 210 of the Code. Therefore, when the order dated 16.04.2013 was passed, the Magistrate has taken cognizance of the offense and thereafter, called for the report. The language of the order dated 16.04.2013, in the opinion of the Court, clearly makes out a case an order under Section 210 of the Code. Moreover, apart from provision of Section 210 of the Code, there is no other provision under the CRPC which provides for the nature of order dated 16.04.2013. [24] Therefore, this Court once having concluded that the order dated 16.04.2013 is an order under Section 210 of the Code and while passing the order under Section 210 of the Code, the Magistrate has taken cognizance of the offense and called for the report of the pending investigation, in the opinion of the Court, the Magistrate is precluded from travelling back to the stage of pre-cognizance and passed the order of directing registration of the FIR. [25] The Court also observes that pursuant to the interim order passed by this court at the time of admission no further action was taken against the present applicants though the investigation qua other accused has proceeded and resulted in filing of a charge sheet. The order will therefore be restricted to the impugned Order only and will have no bearing on the investigation done and therefore it is open for the investigatng agency to submit appropriate report qua the petitioners herein on the strength of the evidence available before the court of appropriate jurisdiction and this order will not come in way of the Court of appropriate proceedings on the basis of such report. [26] With the aforesaid observations, the applications are hereby allowed. The order dated 07.05.2013 by the learned 3rd Judicial Magistrate First Class, Court No.3, Surat in Criminal Misc. Application No.391 of 2013 Rule is made absolute to the aforesaid extent.