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2023 DIGILAW 972 (GUJ)

ROHITBHAI VRAJLAL PAREKH v. STATE OF GUJARAT

2023-08-08

HEMANT M.PRACHCHHAK

body2023
JUDGMENT : HEMANT M. PRACHCHHAK, J. 1. The present appeal is filed by the appellant under Section 341 of the Code of Criminal Procedure Code, 1973 (for short “Cr.P.C.”) against the complaint filed by the learned Additional Sessions Judge, Gondal being Criminal Inquiry No. 34 of 2000 pending before the learned Additional Chief Judicial Magistrate, Gondal, District: Rajkot, whereby, the learned Presiding Officer of the Motor Accident Claims Tribunal (Aux.), Gondal (hereinafter referred to as “the Tribunal”) has passed the order to file a report under Section 156(3) of Cr.P.C. on investigation carried out by the D.S.P. Rajkot (Rural) within 30 days, and on the basis of the said report, to initiate proceedings against the accused persons who are involved in the alleged commission of crime under Section 177, 182, 193, 196, 199, 209, 465, 466, 467, 468, 471, 114 & 120B of the Indian Penal Code. 2. It is the case of the appellant that all the accused persons named in the complaint had prepared the documents with regard to unnatural death of one Jivrajbhai Limbabhai Koyani who died on 19.07.2000. The legal heirs of the said Jivrajbhai had filed a claim petition before the Tribunal being Claim Petition No. 842 of 2000. It is further the case of the appellant that, the appellant being an advocate had filed the said claim petition alongwith the FIR filed by the family members of the deceased Jivrajbhai. The said claim petition came under objection and for that the concerned Tribunal had issued show-cause notice to the present appellant who had filed the claim petition to show cause as to why claim petition should not be dismissed for non-production of the relevant documents viz. Panchnama of the place of occurrence, post-mortem report, etc. The present appellant being an advocate had offered his explanation before the Tribunal as the relevant documents were not provided by his client and therefore, he had not produced the same. On consideration of the explanation tendered by the appellant, the Tribunal had withdrew the said show-cause notice and closed the inquiry against the present appellant. It is further the case of the appellant that, during the pendency of the so called claim petition, the Insurance Company moved an application below Exh.22, whereby, the Tribunal passed the following order on 13.11.2000: “Fix for hearing. It is further the case of the appellant that, during the pendency of the so called claim petition, the Insurance Company moved an application below Exh.22, whereby, the Tribunal passed the following order on 13.11.2000: “Fix for hearing. Responsible officer of the Insurance Company is directed to file affidavit in support of the present application.” 2.1 It is the case of the appellant that, prior to filing of the above application by the Insurance Company at Exh.22, the present appellant had also filed a purshis dated 08.11.2000 below Exh.20 before the Tribunal, whereby, the appellant had sought permission from the Tribunal to withdraw his appearance in Claim Petition No. 842 of 2000 as he did not want to continue as an advocate on behalf of the accused persons who had filed the claim petition. The said purshis was kept for hearing on 23.11.2000 and on 23.11.2000, the Tribunal issued show-cause notice to the present appellant and concerned advocate who had also appeared in the claim petition alongwith the present appellant asking to show cause as to in what circumstances they had instituted the claim petition without accompanying copy of the post-mortem note and panchnama. In response thereto, the present appellant and the concerned advocate had submitted their explanation at Exh.30. Considering the explanation rendered by the appellant and the concerned advocate, the show-cause notice came to be withdrawn and the same was disposed of. On the basis of the application filed by the Insurance Company at Exh.22, the Tribunal had passed the order on the same day i.e. on 23.11.2000 directing the Presiding Officer of the Tribunal to file complaint under Section 340 of Cr.P.C. before the learned Chief Judicial Magistrate, Gondal against all the persons who were involved in filing false and bogus claim petition and also against those who helped in creating bogus documents in filing the said claim petition and also directed the concerned Magistrate to initiate inquiry and take appropriate action as provided under the law. 2.2 On investigation and on inquiry, the charge-sheet came to be filed in the Court of learned Chief Judicial Magistrate, Gondal against all the accused persons whose names revealed during the course of investigation, wherein, the name of the present appellant was shown in column no. 2.2 On investigation and on inquiry, the charge-sheet came to be filed in the Court of learned Chief Judicial Magistrate, Gondal against all the accused persons whose names revealed during the course of investigation, wherein, the name of the present appellant was shown in column no. 2 as accused No. 2, and on further investigation, it was found that the present appellant had filed the claim petition before the Tribunal alongwith the so-called FIR which was forged and fabricated by the accused persons who were named in the report and it was alleged that the present appellant had also helped in preparing such forged documents. With all these allegations, the charge-sheet came to be filed before the concerned Magistrate which was registered as Criminal Inquiry No. 34 of 2000. 3. Feeling aggrieved and dissatisfied with the Criminal Inquiry No. 34 of 2000 pending before the learned Additional Chief Judicial Magistrate, Gondal the appellant has filed the present appeal under Section 341 of the Code of Criminal Procedure, 1973. 4. Heard Mr. Tushar L. Sheth, the learned counsel appearing for the appellant and Ms. Maithili D. Mehta, the learned APP appearing for respondent-State of Gujarat. 5. Mr. Tushar L. Sheth, the learned advocate appearing for the appellant has contended that the claim petition was filed by the appellant and one Mr. Naradbhai C. Baldha being an advocate on behalf of the claimants by producing joint Vakalatnama in connection with the accidental death of Jivrajbhai Limbabhai Koyani and alongwith the claim petition, they had submitted only one document i.e. FIR which is in dispute. He has further contended that thereafter, the appellant had filed purshish before the concerned Tribunal at the first instance contending that he did not want to continue as an advocate on behalf of the so called claimants since they were not providing documents. He has further contended that in the said purshish, the Tribunal had issued show-cause notice to the present appellant as well as to Mr. Baldha seeking explanation within 3 hours. In response thereto, they had offered their explanation before the Tribunal and therefore, the Tribunal had disposed of the said show-cause notice. He has further contended that in the said purshish, the Tribunal had issued show-cause notice to the present appellant as well as to Mr. Baldha seeking explanation within 3 hours. In response thereto, they had offered their explanation before the Tribunal and therefore, the Tribunal had disposed of the said show-cause notice. He has further contended that on very day, the Tribunal had passed the order in the application below Exh.22 filed by the Insurance Company and directed the concerned Presiding Officer of the Claims Tribunal to file criminal complaint against the claimants and carry out investigation and file a report before the concerned Chief Judicial Magistrate. He has further contended that the said order passed by the Presiding Officer of the Tribunal under Section 340 of Cr.P.C. for issuance of process under Section 156(3) of Cr.P.C. is against the settled principles of law and therefore, the appellant has challenged the same before this Court by way of the present appeal. 5.1 Learned advocate Mr. Sheth has further contended that the present appellant was not aware about the fact that the impugned FIR is forged or fabricated by the family members of the deceased Jivrajbhai Koyani with the help of the other co-accused as he had received the memo of claim petition alongwith the FIR from one Mr. Baldha who was an associate advocate with the present appellant and therefore, on the basis of that, the appellant had filed the claim petition before the Tribunal. He has further contended that the appellant was also not aware as to whether the said FIR was genuine, which was obtained by the family members of the deceased Jivrajbhai by forged or fabrication of the documents and therefore, he was not able to say anything and he tendered explanation before the Tribunal that under such circumstances, he had not produced other documents before the Tribunal as he has not received any documents from the claimants. He has also contended that during the course of inquiry, no further material came on record with regard to the involvement as alleged against the present appellant, except that he had filed claim petition before the Tribunal. He has also contended that during the course of inquiry, no further material came on record with regard to the involvement as alleged against the present appellant, except that he had filed claim petition before the Tribunal. He, therefore, contended that the role attributed to the present appellant is only to the effect that he had filed the claim petition relying on the said FIR which was appended to the claim petition as it was received from another advocate Mr. Baldha. He, therefore, urged before this Court that the impugned order of inquiry and the case registered against the present appellant being Criminal Inquiry No. 34 of 2000 be quashed and set aside, whereby, the appellant is facing the charge against the false and fabricated documents. 5.2 In support of his submissions, learned advocate Mr. Sheth has heavily referred to and relied upon the decision of this Court rendered in case of Jayeshbhai Naranbhai Dholakia Vs. State of Gujarat, 2017 JX (Guj) 195, whereby, this Court has dealt with the similar contentions and in the similar set of circumstances, this Court has allowed the appeal filed by the appellant. The relevant observations are made in paragraphs 14 to 28 and 44 to 48, are as under: “(14) The classification of offence under the First Schedule stands as under: CHAPTER XI FALSE EVIDENCE AND OFFENCE AGAINST PUBLIC JUSTICE Section Offence Punishment Cognizable or non-cognizable Bailable or non-bailable By what Court triable 193 Giving or fabricating false evidence in judicial proceedings Imprisonment for 6 years and fine Non-cognizable Bailable Magistrate of first Class Giving or fabricating false evidence in any other case Imprisonment for 3 years and fine Non-cognizable Bailable Any Magistrate CHAPTER XVIII OFFENCES RELATING TO DOCUMENTS AND TO PROPERTY MARKS Section Offence Punishment Cognizable or non-cognizable Bailable or non-bailable By what Court triable 467 Forgery of a valuable security, will or authority valuable security or to receive any Imprisonment for life or for 10 years and fine money etc. Non-cognizable Non-bailable Magistrate of First Class When the valuable security is a promissory note of the Central Government Imprisonment for 7 years and fine Cognizable Non-bailable Magistrate of first Class (15) Section 195 of the Cr.P.C. reads as under: “195. Non-cognizable Non-bailable Magistrate of First Class When the valuable security is a promissory note of the Central Government Imprisonment for 7 years and fine Cognizable Non-bailable Magistrate of first Class (15) Section 195 of the Cr.P.C. reads as under: “195. Prosecution for contempt of lawful authority of public servant, for offences against public justice and for offences relating to documents given in evidence (1) No Court shall take cognizance: (a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code. (ii) of any abetment of, or attempt to commit, such offence. (iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. (b) (i) of any offence punishable under any of the following sections of the Indian Penal Code, namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court. (ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court. (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii) a [except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate. (2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded. (3) In clause (b) of sub-section (1), the term “Court” means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section. (4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate: Provided that (a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate: (b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.” (16) Section 340 of the Cr.P.C. reads as under: “340. Procedure in cases mentioned in section 195 (1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary: (a) record a finding to that effect. (b) make a complaint thereof in writing. (c) send it to a Magistrate of the first class having jurisdiction. (d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate. (e) bind over any person to appear and give evidence before such Magistrate. (d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate. (e) bind over any person to appear and give evidence before such Magistrate. (2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of section 195. (3) A complaint made under this section shall be signed: (a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint. (b) in any other case, by the presiding officer of the Court or by such officer of the Court as the Court may authorise in writing in this behalf. (4) In this section, “Court” has the same meaning as in section 195.” (17) Section 341 of the Cr.P.C. reads as under: “341. Appeal (1) Any person on whose application any Court other than a High Court has refused to make a complaint under sub-section (1) or sub-section (2) of section 340, or against whom such a complaint has been made by such Court, may appeal to the Court to which such former Court is subordinate within the meaning of sub-section (4) of section 195, and the superior Court may thereupon, after notice to the parties as the case may be, making of the complaint which such former Court might have made under section 340, and if it makes such complaint, the provisions of that section shall apply accordingly. (2) An order under this section, and subject to any such order, an order under section 340, shall be final, and shall not be subject to revision.” (18) Section 343 of the Cr.P.C. reads as under: “343. Procedure of Magistrate taking cognizance: (1) A Magistrate to whom a complaint is made under section 340 or section 341 shall, notwithstanding anything contained in Chapter XV, proceed, as far as may be, to deal with the case as if it were instituted on a police report. Procedure of Magistrate taking cognizance: (1) A Magistrate to whom a complaint is made under section 340 or section 341 shall, notwithstanding anything contained in Chapter XV, proceed, as far as may be, to deal with the case as if it were instituted on a police report. (2) Where it is brought to the notice of such Magistrate, or of any other Magistrate to whom the case may have been transferred, that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen, he may, if he thinks fit, at any stage, adjourn the hearing of the case until such appeal is decided.” (19) Section 343 referred to above has its own importance so far as the case at hand is concerned. Clause (1) of Section 343 of the Cr. P.C. consists of two parts. In the first part, the application of Chapter-XV of the Cr.P.C. has been prohibited in a complaint filed by a public servant or by a Court, and in the second part, it has been provided that as far as may be, the case has to be dealt with as if it were instituted on a police report. There is a reason for this because the complaint is not filed by the public servant or by a Court without making previous inquiry and it is largely based on documentary evidence, and therefore, it is not necessary to follow the detailed procedure prescribed for dealing with a case instituted on a complaint filed by a private citizen. In fact, a very detailed procedure has been prescribed to deal with the cases instituted on private complaint so that the unscrupulous persons are not able to harass the good citizens. I consider it appropriate to even refer to the objects and reasons as contained in the 41st Report of the Law Commission as regards Section 343. I may quote the observations of the Law Commission: “35.3. Under S. 476(2), the Court to which a complaint is made under S. 476 shall proceed “as if upon complaint under S. 200”. It was suggested during our discussions that since a complaint is made under Sec. 476 by a responsible judicial officer (and after inquiry in most cases), the Court to which the complaint is made need not and should not hold another inquiry under Chap. It was suggested during our discussions that since a complaint is made under Sec. 476 by a responsible judicial officer (and after inquiry in most cases), the Court to which the complaint is made need not and should not hold another inquiry under Chap. 16 but should issue process under S. 204. It was urged that when a superior Court had made a complaint, it was inappropriate that a Magistrate should again hold an inquiry or dismiss it under S. 203. We, however, felt that there was no justification for totally dispensing with an inquiry under Sec. 202. The Court making the complaint under Section 476 may not have made a thorough inquiry, and the Court taking the cognizance of the offence under S. 195 might like to have more materials before issuing process. The nature of the jurisdiction to be exercised by the Magistrate under Ss. 202 and 203 is not always similar to the nature of proceedings held by the complaining Court under S. 476. For instance, under S. 202, further “investigation” may be ordered, whereas an “inquiry” under S. 476 is of a limited nature. It would not be correct to assume that one will serve the purpose of the other in every case.” (20) Similarly, the observations in Para 35.13 are of some importance, though made in the context of Section 479A inserted in the Code 1955: “35.13. Moreover, action under the Section cannot be taken after judgment is pronounced. Where a complaint “can be” made under the Section, action cannot be taken under S.476, so that if the court, by reason of forgetfulness or insufficient material does not make a complaint on the termination of the proceedings, action cannot be subsequently taken under S. 476, and the offender escapes unpunished a result hardly intended by the legislature. This is positive harm done by this Section.” (21) It is to be noted that under Section 340, the Court contemplated therein is only to make complaint. It is significant to note that reference to complaint has not undergone any change, notwithstanding the comprehensive amendment of 1976. ‘Complaint’ by its very definition, has a clear connotation. This is positive harm done by this Section.” (21) It is to be noted that under Section 340, the Court contemplated therein is only to make complaint. It is significant to note that reference to complaint has not undergone any change, notwithstanding the comprehensive amendment of 1976. ‘Complaint’ by its very definition, has a clear connotation. The definition is as follows: “2(d) “Complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some, person whether known or unknown, has committed an offence, but does not include a police report.” (Emphasis supplied) The continued retention of the word “complaint” in Section 340(b) and the amplification thereafter contained in Section 340(3) that the complaint under that Section shall be signed by an officer of the High Court when the complaint is by the High Court and the Presiding Officer in other case, continues the basic characteristic of the proceedings. The complaint does not get transmuted to a police report ipso facto. Section 343 is not cast in inflexible language. It gives the Magistrate to whom a complaint is made, option in given cases to proceed with the case as if it were instituted on a police report. There are exceptions envisaged in the very Section, by the employment of the term “as far as may be.” It need not, therefore, invariably, be a case of proceedings as instituted on a police report. Another course is also permissible. In other words, where the background of the complaint is one where materials are uncomplicated and not confusing, and had been gathered sufficiently and satisfactorily both in regard to quality and quantum, the Magistrate could, straightway, proceed as if in a case instituted on a police report. The Court is equipped with the necessary materials which have to be furnished to the accused for preparing his defence. Nothing more is needed for commencement and completion of the trial. (22) It may, however, happen that in a given case, due to the absence of such an enquiry by the complaining Court or by reason of its not being exhaustive or adequately detailed, appropriate procedure as in proceedings instituted on a complaint could be found fair and necessary. The wording of Section 343 permits the Magistrate to adopt the complaint procedure in such a situation? The wording of Section 343 permits the Magistrate to adopt the complaint procedure in such a situation? Whether the Assistant Charity Commissioner appointed under Section 5 of the Bombay Public Trust Act, 1950 (for short “the Act”) is a “Court” for the purposes of Section 195 of the Cr.P.C. (23) Section 195(3) of the Cr.P.C. clarifies that in clause (b) of sub-section (1), the term “Court” means a Civil, Revenue or Criminal Court, and includes a Tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section. (24) In Bharat Bank Ltd. vs. Employees of the Bharat Bank Ltd. and another, AIR 1950 SC 188 : 1950 SCR 459 , while dealing with the question, whether industrial tribunal constituted under the Industrial Disputes Act, 1947 was a Court for the purpose of Article 136 of the Constitution of India, the Supreme Court held that the Tribunal has all the trappings of a Court. (25) In Brajnandan Sinha vs. Jyoti Narain, AIR 1956 SC 66 : (1955) 2 SCR 955 : 1956 Cri. L.J. 156, considering the question whether a Commissioner appointed under the Public Servants (Inquiries) Act, 1850 was a Court within the meaning of the Contempt of Courts Act 1952, reference was made to the decision in Bharat Bank’s case (supra) and various other decisions and it was held by the Supreme Court that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial tribunal, power to give a decision or a definitive judgment, which has the finality and authoritativeness which are the essential tests of a judicial pronouncement. (26) In Shri Virindar Kumar Satyawadi vs. State of Punjab, AIR 1956 SC 153 : (1955) 2 SCR 1013 ) : 1956 Cri. L.J. 326, it was laid down by the Supreme Court that what distinguishes a court from a quasijudicial tribunal is that it is charged with a duty to decide the disputes in a judicial manner and declare the rights of parties in a definitive judgment. To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it. To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it. And it also import an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law. When a question, therefore, arises as to whether an authority created by an Act is a Court as distinguished from a quasi-judicial tribunal, what has to be decided is whether having regard to the provisions of the Act it possesses all the attributes of a Court. (27) The aforesaid decisions were cited with approval in Thakur Jugal Kishore Sinha vs. Sitamarhi Central Cooperative Bank Ltd. and another, AIR 1967 SC 1494 : (1967) 3 SCR 163 ) : 1967 Cri. L.J. 1380, where the question was whether the Assistant Registrar of Cooperative Societies, an authority under the Bihar and Orissa Cooperative Societies Act, 1935 could be regarded as a Court for the purposes of the Contempt of Courts Act, 1952, it was held that to determine whether a statutory authority was functioning as a court, the provisions of the concerned statute have to be looked into. After examining the provisions of the Act and the powers, duties and functions of the Assistant Registrar thereunder, the Supreme Court held that the Assistant Registrar performed judicial functions. The Assistant Registrar was regarded as a Court for the purpose of Contempt of Courts Act, 1952. (28) The Bombay Public Trust Act is intended to regulate and make better provisions for the administration of public and charitable trusts in the State. Chapter IV of the Act deals with the registration of public trust after due inquiry. An application for registration of a trust as a public trust is required to be made under Section 18 of the Act, Section 19 stipulates an inquiry for registration. The inquiry shall be held on an application made by any person having interest in the public trust or on his own motion by the Assistant Charity Commissioner to ascertain: (i) whether a trust exist and whether such trust is a public trust. (ii) whether any property is the property of such trust. (iii) whether the whole or any substantial portion of the subject matter of the trust is situate within his jurisdiction. (ii) whether any property is the property of such trust. (iii) whether the whole or any substantial portion of the subject matter of the trust is situate within his jurisdiction. (iv) the names and addresses of the trustees and manager of such trust. (v) the mode of succession to the office of the trustee of such trust. (vi) the origin, nature and object of such trust. (vii) the amount of gross average annual income and expenditure of such trust. (viii) any other particulars as may be prescribed under sub-section (5) of Section 18. (44) It is very unfortunate to note that the learned Magistrate, before whom the complaint came to be lodged by the Superintendent at the instance of the Charity Commissioner, passed an order of police investigation under Section 156(3) of the Cr.P.C. This is something unheard of. I expect the learned Magistrate to at least know that when a complaint is filed by a Court of Law, the same cannot be sent for police investigation, but the learned Magistrate is duty bound to take cognizance of the same and proceed further in accordance with law. This aspect seems to have been overlooked even by the learned Sessions Judge in the Criminal Appeal No. 102 of 2016. A judicial officer of the rank of the Sessions Judge has also exhibited complete ignorance of law in this regard. (45) In the aforesaid context, I may refer to and rely upon the observations made by the Supreme Court in the case of Ranjit Singh vs. The State of Pepsu (Now Punjab), AIR 1959 SC 843 : “Lastly it was urged that the procedure adopted by the Magistrate was erroneous in that he did not hold an enquiry as required under Ss. 200 and 202, Criminal Procedure Code, the former of which is expressly mentioned in subs. (2) of S. 476, Criminal Procedure Code. That contention is equally untenable because under S. 200 proviso (aa) it is not necessary for a Magistrate when a complaint is made by a Court to examine the complainant and neither S. 200 nor S. 202 requires a preliminary enquiry before the Magistrate can assume jurisdiction to issue process against the person complained against.” (46) A learned Single Judge of the Punjab and Haryana High Court in the case of Paras Ram vs. State of Haryana and others, 1995 Cri. L.J. 1603 had the occasion to consider almost an identical issue like the one at hand. I may quote the observations made by the Court in Para 8 as under: “A perusal of the Section shows that when the Court thinks it expedient in the interest of justice that an enquiry should be made into any offence referred to in clause (b) of sub-section (1) of S. 195 and that offence appear to have been committed in relation to proceedings in that Court, the Court may after such preliminary enquiry, if any, make a complaint thereof in writing. On receipt of the application from respondent No. 2, the only course open to the Court was to make an enquiry into the offence alleged to have been committed and after bolding preliminary enquiry if it found that the offence had been committed to make a complaint thereof in writing to a Magistrate of first Class having jurisdiction. The application could not be sent to the police for registration of a case and investigation. The first information report in question has been registered in derogation of the provisions of S. 340, Cr. P.C. and is liable to be quashed on this ground.” (47) I may also refer to and rely upon the decision of the Kerala High Court in the case of Sagar vs. State of Kerala, 2006 Cri. L.J. 1104. I may quote the observations made by the learned Single as contained in Para 7: “Any Court empowered under the Code of Criminal Procedure has got jurisdiction to make a complaint to the concerned Magistrate on entering a finding with regard to the commission of offences punishable under Section 195, Cr.P.C. It is the duty of the Court to record a prima facie finding that such persons against whom proceedings have been initiated have committed the offences punishable under Section 195, Cr.P.C. Once a finding has been entered by the Court with regard to commission of the offence, no second enquiry or investigation is necessary. In the case in hand, the learned Munsiff had already entered a finding and hence the learned Magistrate ought to have proceeded with the complaint as if there is a police report instead of forwarding the same for investigation under Section 156(3), Cr.P.C. The procedure adopted by the learned Magistrate is, therefore, irregular and illegal. In the case in hand, the learned Munsiff had already entered a finding and hence the learned Magistrate ought to have proceeded with the complaint as if there is a police report instead of forwarding the same for investigation under Section 156(3), Cr.P.C. The procedure adopted by the learned Magistrate is, therefore, irregular and illegal. The registration of the crime itself is against the provisions of the Code of Criminal Procedure.” (48) In the result, this application is allowed. The First Information Report registered as the M. Case No. 1 of 2016 at the Ghogha Road Police Station pursuant to the order passed by the 8th Additional Chief Judicial Magistrate, Bhavnagar dated 1st August 2016 is hereby quashed. The order passed by the 6th Additional Chief Judicial Magistrate, Bhavnagar in the Criminal Appeal No. 102 of 2016 affirming the order dated 1st August 2016 is also hereby quashed. Rule is made absolute. Direct service is permitted.” 5.3 Learned advocate Mr. Sheth has also referred to and relied upon the decision of the Hon’ble Apex Court in case of Hira Lal Jain Vs. Delhi Administration, (1973) 3 SCC 398 , wherein, it has been observed and held as under: “9. Admittedly, the appellant has neither impersonated nor committed any forgery. The real charge against him’ is that of conspiracy under Section 120B I.P.C. But there is no prima facie evidence in respect of this charge. The documentary evidence only shows that the appellant made applications on behalf of the other accused, that he filed his vekalatnamas and that he identified them as the real claimants. It is well known that the main income of many lawyers in the District Courts is derived from the work of identifying persons and sureties in the Courts. The other accused must have told the appellant that they were the real claimants. He believed them and agreed to act for them. It seems to us that he did nothing beyond what a lawyer is authorised to do in a Court of Law. There is no evidence to suggest that he had previous knowledge of the fact that the accused were not the rightful claimants. Again, there is no evidence whatsoever that there was any concert between him and the other accused antecedent to the filing of the applications and vakalatnamas in court by him. There is no evidence to suggest that he had previous knowledge of the fact that the accused were not the rightful claimants. Again, there is no evidence whatsoever that there was any concert between him and the other accused antecedent to the filing of the applications and vakalatnamas in court by him. In the absence of such evidence, it cannot be said that there is prima facie evidence for the offence of conspiracy against him. 10. Counsel for the respondent could not dispute before us that there was no direct evidence in respect of the offence of conspiracy against him. But he has submitted that there is circumstantial evidence. According to him there are two incriminating circumstances against the appellant. Firstly; there is the circumstance that he was engaged only for the purpose of identifying the other accused; secondly; he has appropriated a sum of Rupees 1400/- towards his fees and it is a heavy fee. In our view the circumstance of the appellant being engaged by the accused for their identification is no incriminating evidence for the offence of I conspiracy. Fee is an individual matter. Fees vary from lawyer to lawyer. It does not also seem that the sum of Rs. 1400/- Is a heavy fee for the work which the appellant did for the other accused. He had made applications on their behalf-He identified them. He also made himself responsible for refund of the amount in case of wrong payment. He ‘deposited a part of the amount payable to Rattan Singh in a bank. For this work the fee that he charged is 5% of the total amount involved in the case. 11. Counsel for the appellant has urged that the appellant’s act of taking the responsibility to refund the amount in case of wrong payment and the depositing of a part of the above amount in the bank suggest his bona-fide. There appeal’s to be some force in the argument. If there were a conspiracy between the appellant and the other accused, he would have taken care not to make himself responsible for refunding the amount in case of wrong payment. He would also have taken care not to apply to the court that the voucher for the amount payable to Rattan Singh should be drawn in his name. Lastly, he would not have deposited the amount in the bank.” 6. As against that, Ms. He would also have taken care not to apply to the court that the voucher for the amount payable to Rattan Singh should be drawn in his name. Lastly, he would not have deposited the amount in the bank.” 6. As against that, Ms. Maithili D. Mehta, the learned APP appearing for the respondent- State has opposed the present appeal and submitted that as the appellant being an advocate is duty bound to file a claim petition after going through the genuineness of the documents which are appended with the claim petition. She has submitted that without verifying those documents, the claim petition was filed by the present appellant alongwith other advocate based upon the forged and fabricated FIR, though it is not yet established by the concerned criminal court that it was forged or fabricated. She has submitted that the accused are yet to be tried for the alleged concoction or preparation of the fabricated documents and therefore, at this stage, inquiry cannot be dropped against the present appellant. She further submitted that let the appellant face the inquiry and ultimately if it is found that he has not played any role in fabrication of the documents, the concerned Court will exonerate him from the charges levelled against him, and therefore, the present appeal may not be entertained. 6.1 Learned APP Ms. Mehta has further submitted that considering the report filed by the I.O. the concerned Court has passed the order which is in consonance with the provisions of law and therefore, in the present case, let the appellant may face the inquiry which is pending before the concerned Court. She has urged that the present appeal may be dismissed and no interference at this stage is required to be called for. 7. She has urged that the present appeal may be dismissed and no interference at this stage is required to be called for. 7. I have heard the learned advocates appearing for the respective parties and I have also perused the decision of this Court, whereby, this Court has observed that there is a clear prohibition of complaint filed by a public servant under Section 343 of Cr.P.C. as for the purpose of Section 195 of Cr.P.C. the Presiding Officer being a Judicial Officer possesses all the powers attributed to a Court, therefore, it is mandatory for the Court to come to the conclusion that the person has intentionally or with mala-fide intention forged the document and filed the same before the Court with a view to get benefit and for that, inquiry officer is not empowered to file a complaint under Section 340 of Cr.P.C. and on the basis of that, process cannot be issued under Section 156(3) of Cr.P.C. After going through the relevant material produced on record, the appellant being a practicing advocate and has filed the claim petition upon instructions of the client alongwith the copy of the FIR and during the course of inquiry, there is no relevant material found with regard to preparing so called forged documents by forging or fabricating the material, the appellant has played any role in the alleged offence. Merely the appellant had filed the claim petition before the Tribunal on behalf of the claimants alongwith the copy of the FIR and, therefore, the process issued against the present appellant in Criminal Inquiry No. 34 of 2000 is against the settled principles of law and in the facts of the present case. Even from bare reading of the charge-sheet papers, it reveals that there is no serious role attributed to the present appellant and therefore, the appellant being an advocate has to face unnecessary criminal prosecution. 7.1 This Court has dealt with similar situation in case of Jayeshbhai Naranbhai Dholakia (Supra) more particularly, the observations made in paragraph 14 onwards, the Court has discussed the provisions of Section 340 of Cr.P.C. in detail. This Court, while dealing with the issue, referred to and relied upon the judgment of the Hon’ble Apex Court rendered in case of Shri Virindar Kumar Satyawadi Vs. This Court, while dealing with the issue, referred to and relied upon the judgment of the Hon’ble Apex Court rendered in case of Shri Virindar Kumar Satyawadi Vs. State of Punjab, AIR 1956 SC 153 , wherein, the Hon’ble Apex Court has observed that “what distinguishes a court from a quasi-judicial tribunal is that it is charged with a duty to decide the disputes in a judicial manner and declare the rights of parties in a definitive judgment. To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it. And it also imports an obligation on the part of their claim and to decide the matter on a consideration of the evidence adduced and in accordance with law. When a question, therefore, arises as to whether an authority created by an Act is a Court as distinguished from a quasi-judicial tribunal, what has to be decided is whether having regard to the provisions of the Act it possesses all the attributes if a Court.” Therefore, the Tribunal ought to have appreciated the said fact while passing the impugned order which is under challenge by initiating proceedings under Section 340 read with Section 195(3) of Cr.P.C. and the observations made by the Hon’ble Apex Court in the said judgment which is similar in nature and similar circumstances and therefore, the Court has quashed the complaint qua the petitioner who approached this Court and for others, the Court had continued the proceedings. Considering the ratio laid down by the Hon’ble Apex Court as well as this Court, I am of the opinion that the present appeal deserves to be allowed on the ground that in the Criminal Inquiry No. 34 of 2000 initiated against the present appellant, even he was not named in the FIR and in the charge-sheet, it was mentioned that the appellant had only filed the claim petition before the Tribunal alongwith the copy of the FIR, except this, there is no further allegations against the present appellant and therefore, the order passed by the Tribunal relying upon the documents produced before it, deserves to be quashed and set aside qua the present appellant. So far as the other persons who are named in the FIR or subsequently added as accused during the course of investigation are concerned, let Criminal Inquiry Case No. 34 of 2000 be continued. 8. The present appeal is hereby allowed. The impugned complaint being Criminal Inquiry No. 34 of 2000 pending before the learned Additional Chief Judicial Magistrate, Gondal is hereby quashed and set aside and the proceedings initiated in pursuance thereof, if any, are also quashed and set aside qua the present appellant only. 9. Record and Proceedings, if any, be sent back to the concerned Court forthwith.