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2024 DIGILAW 530 (GUJ)

Harshikaben Shantilal Patel v. State of Gujarat

2024-03-13

CHEEKATI MANAVENDRANATH ROY

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JUDGMENT : 1. By way of filing this Special Criminal Application under Articles 226 and 227 of the Constitution of India, the petitioners have challenged the legal validity of the impugned order dated 3.1.2015 passed by the learned Judicial Magistrate, First Class, Anand, whereby he has forwarded the complaint filed by respondent no.2 to the concerned police under Section 156 (3) of the Criminal Procedure Code with a direction to register an FIR and to investigate the case and to submit his report. 2. Heard Mr.D.C.Dave, learned Senior Counsel for the petitioner and Ms.Jyoti Bhatt, learned APP for the respondent- State and Mr.S.I.Nanavati, learned Senior Counsel for the second respondent. 3. Concise statement of facts leading to the lis, relevant for disposal of this application, is stated as follows:- 3.1 The second respondent is the complainant, who has filed a private complaint before the learned Judicial Magistrate, First Class, Anand, for the offences punishable under Sections 467, 468, 465, 420 and 120-B of the Indian Penal Code against the petitioners herein. 3.2 As per the allegations ascribed in the said complaint, father of the complainant by name Shashikant P. Patel passed away on 17.4.2012. Prior to his death, marriage with his wife was dissolved by way of divorce. It is stated that his father died intestate and after his death only his children succeeded to his estate, as there was divorce between him and his wife. 3.3 However, it is stated that the first petitioner herein claiming to be the wife alleging that the deceased Shashikant P. Patel married her on 5.4.2012 made a claim over his properties. It is stated that she has fabricated false marriage certificate as if it was also signed by the deceased Shashikant P. Patel and also created a forged Will said to have been executed by the deceased-Shashikant P. Patel, during his lifetime bequeathing all his movable and immovable properties in her favour. Therefore, as she laid a claim over the properties of Late Shashikant P. Patel on the basis of said false and bogus Marriage Certificate, Will and also a false Pedigree, which was created by her, the complainant filed the said complaint before the learned Magistrate to prosecute the petitioners herein for committing the aforesaid offences of creating false and forged documents and for laying false claim in respect of property of Late Shashikant P. Patel. 3.4 The said complaint was filed under Section 200 of CrPC and the complainant also made a prayer in the said complaint to refer the case under Section 156 (3) of CrPC to the police to register an FIR and to investigate the case. 3.5 The learned Magistrate by the impugned order has forwarded the said complaint under Section 156 (3) of CrPC to the concerned police to register an FIR and to investigate the case. 4. The petitioners now challenge the said order of the learned Magistrate in forwarding the complaint to the police for registration of FIR and to investigate the same on the ground that the impugned order is a cryptic order devoid of any reasons and that the learned Magistrate has passed the said order without applying his judicial mind, as required under the law. 4.1 Elaborating the contention, learned counsel for the petitioners would contend that when the learned Magistrate invokes Section 156 (3) of CrPC and forwards the complaint to the police for registration of FIR and investigation that he has to invariably pass a reasoned order as to how a prima facie case is made out against the accused relating to commission of alleged offences and why registration of FIR and investigation is required and, if the order is passed without assigning any reasons, as stated above, that the order is legally not sustainable under law. Therefore, relying on the law laid down by the Apex Court in the case of Anil Kumar and Another v. M.K.Aiyappa and Another reported in [2013] 10 SCC 705, and Priyanka Srivastava and Another v. State of Uttar Pradesh and Others reported in [2015] 6 SCC 287, he would submit that the impugned order of the learned Magistrate is clearly unsustainable under law and thereby prayed to set aside the same. He also contends that before invoking Section 156 (3) of CrPC, the complainant has to first exhaust the remedies contemplated under Section 154 (1) and 154 (3) of CrPC and without exhausting the said remedies, he cannot invoke Section 156 (3) of CrPC. Therefore, essentially on the aforesaid ground, he prayed to quash the impugned order and to set aside the same. 5. Therefore, essentially on the aforesaid ground, he prayed to quash the impugned order and to set aside the same. 5. Repelling the said contentions, learned counsel for the second respondent vehemently contends that the facts of the case and the allegations ascribed in the complaint clearly constitute offences of fabricating and forging false documents like a Will, Marriage Certificate and Pedigree to lay a false claim on the properties of father of the complainant Late Shashikant P. Patel and he contends that when the complainant has filed a petition for grant of succession certificate after the death of his father against the first petitioner herein and others, that the first petitioner has taken a plea in it that Late Shashikant P. Patel has executed an unregistered Will and, at that time, the complainant came to know about the said Will and he has filed a Suit to declare that said Will is a bogus Will and also that the Pedigree and the Marriage Certificate are bogus documents and, thereafter complained to the Registrar of Marriages also that Marriage Certificate was fabricated by the first petitioner with a request to take action against her and the Registrar has forwarded said report to the police and the police did not register the case and informed in writing to the Registrar that he may take action as per law. He then contends that subsequently the second respondent-complainant has also sent a report to the police relating to said offences committed by the first petitioner and they did not initiate any legal action on it. So, he would contend that in the said circumstances, the present complaint is filed. He vehemently contends that when the allegations prima facie constitute a clear offence against the petitioners of fabricating and forging false documents, the impugned order cannot be quashed or set aside on purely a technical ground that adequate reasons are not assigned by the learned Magistrate in passing the impugned order. He contends that if the order is not found to be in accordance with law on account of the legal error committed by the learned Magistrate, that the matter may be remanded to the learned Magistrate to pass an order afresh by assigning reasons. He contends that if the order is not found to be in accordance with law on account of the legal error committed by the learned Magistrate, that the matter may be remanded to the learned Magistrate to pass an order afresh by assigning reasons. He would contend that the persons, who have committed such serious offences, cannot be left scot-free on account of the error, if any, committed by the learned Magistrate in passing the impugned order. 6. Material facts of the case are not in controversy. Admittedly, father of the complainant-Shashikant P. Patel passed away on 17.4.2012. According to the complainant, there was a divorce between his father and his mother prior to his death, and that, by the date of his death, he has no wife and only his progeny succeeded to his estate. It is also his case that the first petitioner has created a false Marriage Certificate, as if his father has married her just before his death on 5.4.2012 with the forged signature of his father and, that thereafter she has also created an unregistered Will with the forged signature of his father and a false pedigree, and when said Will was sent to the hand-writing expert by the Civil Court in a petition filed by the complainant for obtaining Succession Certificate that the hand-writing expert also opined that the Will was not signed by the deceased and it is forged one. 7. Therefore, he has filed a complaint before the learned Magistrate under Section 200 of CrPC with above allegations. Alternatively, he has also prayed in the said complaint to forward the said complaint under Section 156 (3) to the police to register an FIR and to investigate the case. In view of the said prayer, learned Magistrate also by the impugned order has forwarded the said complaint to the concerned police to register an FIR and to investigate the case. As can be seen from the order, the learned Magistrate has only stated in the order that he has perused the complaint and thereby forwarded the said complaint to the police with a direction to register an FIR and to investigate the case and to file his report. He did not assign any reason for forwarding the said complaint to the police for investigation. 8. He did not assign any reason for forwarding the said complaint to the police for investigation. 8. As noticed supra, the petitioners/accused sought to quash the said order on the ground that it is a cryptic order, without any valid reasons assigned as required under the law, and without applying the judicious mind of the learned Magistrate to the facts of the case. Therefore, according to the petitioners the impugned order is unsustainable under law. In support of the said contention, they relied on the judgment of the Apex Court in the case of Priyanka Srivastava and in Anil Kumar cited supra. 9. As per the law enunciated in the aforesaid judgments of the Apex Court, the legal position in made clear that when a Magistrate invokes Section 156 (3) of CrPC and passes an order directing the police to register an FIR and to investigate the case, that order must reflect that the Magistrate has applied his judicious mind to the facts of the case and as to why the said complaint was referred to the police for investigation. 10. If the impugned order is considered in light of the law laid down in the aforesaid judgments, certainly and undoubtedly it is a cryptic order, not supported by any reasons as to why it was forwarded to the police for registration of FIR and for investigation. It does not reflect that the learned Magistrate has applied his judicious mind to the facts of the case. The mere fact that it is stated in the order that he has perused the complaint and the material available on record is not sufficient to hold that he has applied his judicious mind to the facts of the case to pass the impugned order. In fact, in Anil Kumar and another’s case (supra), the Apex Court clearly held in paragraph No.11 as follows:- “11. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) Cr.P.C., should be reflected in the order, though a detailed expression of his views is neither required nor warranted.” 11. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) Cr.P.C., should be reflected in the order, though a detailed expression of his views is neither required nor warranted.” 11. As the learned Magistrate has only stated that he has perused the complaint and the documents and thereby ordered to register an FIR and to investigate the case, certainly, it is not an order passed after applying his judicious mind to the facts of the case. The order does not reflect that he has applied his judicious mind to the facts of the case. As noticed supra, it is undoubtedly a cryptic order. 12. However, if the facts of the case are carefully considered and examined along with the material available on record, certainly one would come to prime facie opinion that a case is made out relating to fabrication of the documents like Will and Marriage Certificate etc. But it is only on account of the fault on the part of the learned Magistrate and the error committed by him, in not passing a speaking order by assigning reasons as to what weighed with him to forward the case to the police for investigation and how registration of FIR and investigation could be conducive to justice, the impugned order cannot be sustained. Therefore, in the circumstances, when the material on record, prima facie establishes that a case is made out to investigate the case on the basis of the allegations set out in the complaint, the Court is of the considered view that while setting aside the impugned order, that the matter is to be remanded to the learned Magistrate to pass an order afresh after considering the material on record and by assigning reasons for forwarding such complaint to the police to register an FIR and to investigate the case. 13. 13. In the recent judgment rendered by the Apex Court in Kailash Vijayavargiya v. Rajlakshmi Chaudhary, 2023 SCC Online SC 569, after finding that the order passed by the learned Magistrate forwarding the case to the police under Section 156 (3) of CrPC with a direction to register an FIR and investigate the case is not valid, as it does not reflect the application of judicious mind of the learned Magistrate and as no reasons are assigned for ordering such investigation, the Supreme Court has ultimately remanded the matter to the learned Magistrate to pass an order afresh. In paragraph No.85 of the judgment, the Apex Court held as follows:- “85. In view of the above and for the reasons stated above, while affirming the impugned judgment and order passed by the High Court remanding the matter back to the learned Magistrate, we set aside the subsequent order passed by the Magistrate on remand, pursuant to the impugned judgment and order passed by the High Court and remit the matter back to the learned Magistrate to examine and apply his judicial mind and then exercise discretion whether or not to issue directions under section 156(3) or whether he can take cognizance and follow the procedure under section 202. He can also direct the preliminary enquiry by the police in terms of the law laid down by this Court in the case of Lalita Kumari (supra). Copies of the papers and documents filed before the High Court and this Court could also be forwarded and brought on record of the Magistrate, who would thereupon examine and consider the matter. As observed hereinabove, the complainant/informant would be entitled to question the genuineness of the contents of the said documents.” 14. Therefore, after considering the facts and circumstances of the case and the material on record, in view of the fact that even the hand-writing expert opined that Will in question was not signed by the alleged testator Late Shashikant P. Patel, this Court is also of the considered view that the matter requires investigation to find out the truth or otherwise of the allegations. Therefore, it is a fit case where the same can be remanded to the learned Magistrate to apply his judicial mind and then exercise his discretion whether or not to issue any such direction under Section 156 (3) or under Section 200 of CrPC by assigning adequate reasons to that effect. 15. As regards the contention of the learned counsel for the petitioner that, as per the observations made by the Apex Court in Priyanka Srivastava (supra) that before invoking Section 156 (3) of CrPC that the party has to first exhaust the remedies under Section 154(1) and 154(3) is concerned, as per the material now placed before the Court, the complainant has complained about fabrication of Marriage Certificate to the Registrar of Marriages and he has forwarded the same to the police and the police did not initiate any action on it and informed the Registrar to take action as per law at his end. Further, according to the complainant, he has also sent a report dated 12.5.2012 to the District Superintendent of Police by registered post and he also did not initiate any action. Therefore, there is sufficient compliance of Sections 154 (1) and 154 (3) of CrPC before invoking Section 156 (3) of CrPC. Therefore, the impugned order cannot be found fault with on that ground. 16. Resultantly, the impugned order is set aside and the matter is remanded to the learned Judicial Magistrate, First Class, Anand, with a direction to pass an order afresh by applying his judicious mind to the facts of the case and then exercise discretion whether or not to issue directions under Section 156 (3) or whether he can take cognizance and follow the procedure under Section 200 and 202 of CrPC on the basis of the material that is placed on record. He shall assign reasons as to what weighed with him to pass such order. The learned Magistrate has to go through the law laid down by the Apex Court in Priyanka Srivastava, Anil Kumar and Kailash Vijayavargiya (supra) and then pass an order in accordance with law. As it is an old case of the year 2015, the learned Magistrate shall pass an order afresh, as directed, within 2 months from the date of this order. As it is an old case of the year 2015, the learned Magistrate shall pass an order afresh, as directed, within 2 months from the date of this order. The learned Magistrate shall not be swayed away by any observations made by this Court in this order incidentally and it is entirely left to the discretion of the learned Magistrate to decide as per his decision on the basis of the material available on record. Interim relief granted earlier stands vacated.