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2024 DIGILAW 207 (GUJ)

JAI BHAGWAN RAM SWARUP DAS v. STATE OF GUJARAT

2024-01-25

S.V.PINTO

body2024
ORDER : 1. RULE. Learned Additional Public Prosecutor appears and waives service of notice of rule on behalf of the respondent-State. 2. By way of this application filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (for short “the Cr.P.C.”) the present applicant has prayed for quashing and setting aside order dated 14th December, 2023 passed by the learned 16th Additional Chief Judicial Magistrate, Vadodara in Criminal Inquiry No. 401 of 2023. 3. The brief facts giving rise to the present application of the applicant-original complainant are in nutshell as under: 3.1 That one Rajendrasinh Lalsinh Solanki - the original accused wanted to purchase a residential flat and was in need of some money and since the applicant was having good relations with the said Rajendrasinh Lalsinh Solanki made a written request to lend him 10 lakhs (Rs. Ten Lakhs) on 10 Rs. 10 lakhs (Rs. Ten Lakhs) on 10th July 2022 and the applicant agrred and gave him the amount of 10 lakhs, which was Rs. 10 lakhs (Rs. Ten Lakhs) on 10 transferred by NEFT in the account of the said Rajendrasinh Lalsinh Solanki on 4th August, 2022. That on the same day, the applicant and Rajendrasinh Lalsinh Solanki executed a notarized agreement, wherein, a specific condition was mentioned that the said amount of 10 lakhs had to be returned within a period of 90 Rs. 10 lakhs (Rs. Ten Lakhs) on 10 days from the date of agreement or interest had to be paid on the same amount and also a specific condition that the amount shall be used only for buying a residential flat and would not be used for any other purpose. That Rajendrasinh Lalsinh Solanki had also issued a cheque No. “000078” dated 3rd November, 2022 in favour of the applicant and as the said amount was not paid within the stipulated period, the cheque was deposited for clearance in the bank of the applicant but returned with the endorsement of “fund insufficient.” That it was also found that the said Rajendrasinh Lalsinh Solanki did not utilized the said amount of 10 lakhs for Rs. 10 lakhs (Rs. 10 lakhs (Rs. Ten Lakhs) on 10 purchasing the residential flat but has utilize the said amount for other purposes and hence as the said Rajendrasinh Lalsinh Solanki had committed the offence of criminal breach of trust and cheating, the applicant gave a written complaint before the Gotri Police Station on 16th December 2022. The Police Inspector Gotri Police Station did not register the FIR but recorded the statements of the applicant on 18th December 2022, 5th January, 2023 and 1st March, 2023 and sought permission from the Police Commissioner, Vadodara City (Reader Branch) for registering the FIR, by a letter dated 18th April, 2023 and the said letter was sent through the Assistant Commissioner of Police (Zone-2), Vadodara City and Additional Commissioner of Police (D-Division), Vadodara City. That by a letter dated 21st April, 2023, the Additional Commissioner of Police (D Division) Vadodara City had opined that the offence under Section 420, 406 of the IPC was made out and hence the permission to register the FIR be given and similarly by a letter dated 27th April 2023, the Assistant Police Commissioner, (Zone-2) opined that the offence under Sections 420 and 406 was made and hence the permission to register the FIR be given. 3.2 That the office of the Commissioner of Police, Vadodara City sent the Police Inspector, Gotri Police Station a letter dated 16th June, 2023, stating that as the applicant can exercise his relief under Section 138 of the Negotiable Instrument Act, the permission to register the FIR was not given and all the papers were returned to the Gotri Police Station. 3.3 Being aggrieved and dissatisfied with the same, the applicant approached the Court of the learned Chief Judicial Magistrate, Vadodara and file an application under Section 156(3) of the Cr.P.C. and on 7.8.2023 and the learned 16th Additional Chief Judicial Magistrate, Vadodara passed an order below Exh;1 after recording the verification on oath of the complainant, to treat the application of the applicant filed under Section 156(3) of the Cr.P.C. as a complaint under Section 2(d) of the Cr.P.C. and passed an order for police inquiry under Section 202 of the Cr.P.C. and directed the police to file a report within 30 days which was registered as Criminal Inquiry No. 401 of 2023. That after the report of the concerned Police Station was received, the learned 16th Additional Chief Judicial Magistrate, Vadodara by an order dated 14.12.2023, issued process against the original accused for the offences under Sections 406 and 420 of the IPC and Criminal Inquiry No. 401 of 2023 was registered as Criminal Case No. 37679 of 2023. 4. Being aggrieved and dissatisfied with the said order, the applicant has approached this Court, by way of filing the present revision application. 5. Heard learned advocate Mr. Sashikant Parmar appearing for the applicant and learned Additional Public Prosecutor Mr. Jirga Jhaveri, appearing for the respondent-State. 6. Mr. Sashikant Parmar, learned advocate for the applicant submits that the present applicant had preferred a complaint disclosing various cognizable offences under the IPC and the offences under Sections 420 and 406 were clearly made out and it is settled law that when a cognizable offence is made out, the police station is bound to register the FIR. The application of the applicant has gone through the various superior police officers and the Assistant Commissioner of Police (Zone 2), Vadodara City and Additional Commissioner of Police (D Division), Vadodara City have clearly opined that a cognizable offence under Sections 406 and 420 of IPC, is clearly made out but no FIR has been registered. That the applicant had made all efforts to get the FIR registered but as he could not succeed, he approached the Court of the learned Chief Judicial Magistrate, Vadodara by filing an application under Section 156(3) of the Cr.P.C. but the learned 16th Additional Chief Judicial Magistrate, Vadoara has grossly erred in considering the application to be a complaint and without allowing or rejecting the application under Section 156(3) of the C Cr.P.C. passed an order under Section 202 of the Cr.P.C. and called for the report and even though the report clearly stated that the offence under Sections 406 and 420 of the Indian Penal Code, 1860 is made out, passed an order to issue process against the original accused instead of directly the concerned police station to register the FIR. That the order of the learned 16th Additional Chief Judicial Magistrate, Vadodara, is improper and illegal as the applicant had already filed the complaint before the Gotri Police Station, which was inquired into in detail and two superior police officers have opined that the offence is made out. That the order of the learned 16th Additional Chief Judicial Magistrate, Vadodara, is improper and illegal as the applicant had already filed the complaint before the Gotri Police Station, which was inquired into in detail and two superior police officers have opined that the offence is made out. That the learned 16th Additional Chief Judicial Magistrate, Vadodara, ought to have simply allowed the application of the applicant and directed the concerned Police station to register the FIR as settled by the Hon’ble Apex Court in catena of decisions. 6.1 By relying upon the decision of the Apex Court in the case of M. Subramaniam and Another vs. S. Janaki and Another, 2020 SCC Online SC 341, learned advocate Mr. Sashikant Parmar has submitted that the applicant has exhausted all other efficacious remedy and thus the present application is maintainable before this Hon'ble Court. That on the bare perusal of the complaint, the records of the court and other documents relied upon by the applicant, there is a disclosure of a cognizable offence and as there is a disclosure of a cognizable offence, a FIR ought to be registered and the same is reiterated by several judgments of this Court and the Apex Court. By relying upon decision of the Apex Court in the case of Sakiri Vasu vs. State of U.P. (2008) 2 SCC 409 , the learned advocate has submitted that as the said complaint prima-facie discloses a cognizable offence, the said complaint has to be registered as a FIR u/s 154 of the Code of Criminal Procedure, 1973 and the learned Magistrate has erred in appreciating the said fact and has wrongly passed an order under Section 204 of the Code below the application u/s 156(3) and hence, considering the above, the present application may be allowed. 6.2 In support of his case, Mr. Shashikant Parmar, learned advocate appearing for the applicant has also relied upon the decision of the Hon’ble Apex Court in the case of Sangeetaben Mahendrabhai Patel vs. State of Gujarat, 2012 Law Suit (SC) 236, wherein the Hon’ble Apex Court, in paragraphs No. 27 and 28, has observed as under: “27. Admittedly, the appellant had been tried earlier for the offences punishable under the provisions of Section 138 N.I. Act and the case is sub judice before the High Court. Admittedly, the appellant had been tried earlier for the offences punishable under the provisions of Section 138 N.I. Act and the case is sub judice before the High Court. In the instant case, he is involved under Sections 406/420 read with Section 114 IPC. In the prosecution under Section 138 N.I. Act, the mens rea i.e. fraudulent or dishonest intention at the time of issuance of cheque is not required to be proved. However, in the case under IPC involved herein, the issue of mens rea may be relevant. The offence punishable under Section 420 IPC is a serious one as the sentence of 7 years can be imposed. In the case under N.I. Act, there is a legal presumption that the cheque had been issued for discharging the antecedent liability and that presumption can be rebutted only by the person who draws the cheque. Such a requirement is not there in the offences under IPC. In the case under N.I. Act, if a fine is imposed, it is to be adjusted to meet the legally enforceable liability. There cannot be such a requirement in the offences under IPC. The case under N.I. Act can only be initiated by filing a complaint. However, in a case under the IPC such a condition is not necessary. 28. There may be some overlapping of facts in both the cases but ingredients of offences are entirely different. Thus, the subsequent case is not barred by any of the aforesaid statutory provisions.” 7. Learned APP Ms. Jirga Jhaveri appearing for the respondent-State has submitted that necessary orders may be passed in view of the fact that the learned Magistrate has recorded the verification of the applicant and undertaken the procedure of Section 200 of the Code of Criminal Procedure even though the application was filed application under Section 156(3) of the Code of Criminal Procedure. 8. The Apex Court, in the case of Sakiri Vasu vs. State of Uttar Pradesh (Supra), in Paragraph Nos. 24 to 27, has held as under: “24. 8. The Apex Court, in the case of Sakiri Vasu vs. State of Uttar Pradesh (Supra), in Paragraph Nos. 24 to 27, has held as under: “24. In view of the abovementioned legal position, we are of the view that although Section 156(3) is very briefly worded, there is an implied power in the Magistrate under Section 156(3) Cr.P.C. to order registration of a criminal offence and/or to direct the officer in charge of the police station concerned to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3) Cr.P.C. we are of the opinion that they are implied in the above provision. 25. We have elaborated on the above matter because we often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition under Section 482 Cr.P.C. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters and relegate the petitioner to his alternating remedy, first under Section 154(3) and Section 36 Cr.P.C. before the police officers concerned, and if that is of no avail, by approaching the Magistrate concerned under Section 156(3). 26. If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) Cr.P.C. or other police officer referred to in Section 36 Cr.P.C. If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) Cr.P.C. instead of rushing to the High Court by way of a writ petition or a petition under Section 482 Cr.P.C. Moreover, he has a further remedy of filing a criminal complaint under Section 200 Cr.P.C. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies? 27. 27. As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C. simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under Sections 36 and 154(3) before the police officers concerned, and if that is of no avail, under Section 156(3) Cr.P.C. before the Magistrate or by filing a criminal complaint under Section 200 Cr.P.C. and not by filing a writ petition or a petition under Section 482 Cr.P.C.” 8.1 The Apex Court, in the case of M. Subramaniam and Another vs. S. Janaki and Another (Supra), in Paragraph No. 5, held as under: 5. xxx xxx xxx xxx xxx 11 to 16. xxx xxx xxx xxx xxx 17. In our opinion Section 156(3) CPC is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an FIR and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not be done, or is not being done by the police. Section 156(3) CPC, though brief worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation. 18. It is well settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary for its execution. 6. The said ratio has been followed in Sudhir Bhaskarrao Tambe vs. Hema Yashwant Dhage, in which it is observed: “2. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary for its execution. 6. The said ratio has been followed in Sudhir Bhaskarrao Tambe vs. Hema Yashwant Dhage, in which it is observed: “2. This Court has held in Sakiri Vasu vs. State of U.P. that if a person has grievance that his FIR has not been registered by the police, or having been registered, proper investigation is not being done, then the remedy of the aggrieved person is not to go to the High Court under Article 226 of the Constitution of India but to approach the Magistrate concerned under Section 156(3) Cr.P.C. If such an application under Section 156(3) Cr.P.C. is made and the Magistrate is, prima facie, satisfied, he can direct the FIR to be registered, or if it has already been registered he can direct proper investigation to be done which includes in his discretion, if he deems it necessary, recommending change of the investigating officer, so that a proper investigation is done in the matter. We have said this in Sakiri Vasu case because what we have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation.” 9. In view of above settled provisions of law, it is the case of the applicant that as a cognizable offence under Sections 406 and 420 of the IPC was made out, he filed a written complaint before the Gotri Police Station along with necessary documents and the written complaint was duly investigated into and the Investigating Police Inspector, Gotril Police Station came to a conclusion that a cognizable offence is made out and sought for permission from the Police Commissioner, Vadodara City to file the FIR. That the letter seeking permission was sent through the Assistant Commissioner of Police (Zone-2), Vadodara City and Additional Commissioner of Police (D Division), Vadodara City and both the Superior Police Officers had opined that a cognizable offence under Sections 406 and 420 of the IPC is clearly made out. That, even though the cognizable offence was clearly made out and it was the duty of the police station to register the F.I.R. no FIR was register. That, even though the cognizable offence was clearly made out and it was the duty of the police station to register the F.I.R. no FIR was register. As per the settled principles of law, as the applicant failed to get the FIR registered, he filed an application under Section 156(3) of the Code before the learned 16th Additional Chief Judicial Magistrate, Vadodara, but it appears that the learned 16th Additional Chief Judicial Magistrate treated the application u/s 156(3) of the Code, as a complaint under Section 200 of the Code and passed an order under Section 202 of the Cr.P.C. directing an investigation to be made by the concerned Police station. That this act of treating the application under Section 156(3) of the Cr.P.C. as a complaint under Section 200 of the Cr.P.C. and recording the verification of the applicant is an erroneous procedure on the part of the learned 16th Additional Chief Judicial Magistrate, Vadodara and the learned 16th Additional Chief Judicial Magistrate ought to have considered that the complaint was already filed before the concerned police station and sufficient investigation was already carried out by the concerned Police station and the opinion of the Assistant Police Commissioner (Zone-2) and Additional Police Commissioner (‘D’ division) ought to have been considered and necessary orders regarding the application filed under Section 156(3) of the Cr.P.C. ought to have been passed. It is settled position of law that when the application under Section 156(3) of the Code is filed before the learned 16th Additional Chief Judicial Magistrate, learned 16th Additional Chief Judicial Magistrate can direct the FIR to be registered and if no proper investigation was made, can direct the proper investigation to be carried out and necessary orders to that effect must be passed. It appears that the procedure adopted by the learned 16th Additional Chief Judicial Magistrate, Vadodara is not correct and legal and suffers from patent infirmity and the order of the learned 16th Additional Chief Judicial Magistrate, Vadodara must be set aside and the learned Magistrate must be directed to follow the procedure as established by law. 10. In view of the above settled principles of law, the revision application deserves to be allowed and accordingly, is allowed. Rule is made absolute to the aforesaid extent. 10. In view of the above settled principles of law, the revision application deserves to be allowed and accordingly, is allowed. Rule is made absolute to the aforesaid extent. The judgment and order passed in Criminal Inquiry No. 401 of 2023 dated 14th December, 2023 by the learned 16th Additional Senior Civil Judge, Vadodara is quashed and set aside and the matter is remanded back to the learned Magistrate to undertake afresh the entire procedure below the application of the applicant as per law.