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2025 DIGILAW 431 (GUJ)

Jayaben Haribhai Pansara v. State Of Gujarat

2025-06-11

HASMUKH D.SUTHAR

body2025
ORDER : HASMUKH D. SUTHAR, J. [1.0] RULE. Learned APP Mr. K.M. Antani waives service of notice of Rule on behalf of the respondent No.1 – State of Gujarat. [2.0] Present petition under Articles 226 and 227 of the Constitution of India read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short “ BNSS ”) is filed by the petitioner seeking quashing of order dated 14.11.2024 passed by the learned Sessions Judge, Jamnagar in Criminal Revision Application No.59/2023 as well as the order dated 04.08.2023 passed by the learned Chief Judicial Magistrate, Jamnagar in Criminal Inquiry No.310/2016. [3.0] The brief facts as culled out from the petition are as follows: [3.1] The respondent No.2 herein was working as Senior Pharmacist in the G.G. Medical Hospital, Jamnagar and since the parties are family members and share a good relation, on request by respondent No.2, on 15.11.2010 petitioner herein opened a bank account in joint name with Bank of Baroda, Jamnagar and said account was opened by respondent No.2 for doing as commission agent of Unique Mercantile Company and had given an assurance to the petitioner that petitioner will be paid some share of the commission however, no amount was paid to the petitioner and name as well as bank account of the petitioner was misused. [3.2] For alleged illegal use of the bank account of the petitioner, the petitioner filed a complaint in the Court of learned Chief Judicial Magistrate, Jamnagar being Criminal Inquiry No.310/2016 for the offence punishable under Sections 406 , 409, 418, 420, 467, 468, 471, 504, 506(2), 120(A)(B) of INDIAN PENAL CODE , 1860 and section 15(1)(2) of the CENTRAL CIVIL SERVICES RULES , 1955. Pursuant to such complaint, statement of the petitioner came to be recorded under Section 202 of the Code of Criminal Procedure, 1973 (for short “CrPC”) on 30.04.2017 pursuant to which learned Magistrate was pleased to pass order for police enquiry against the respondent No.2 herein and police report called from the City ‘A’ Division Police Station, Jamnagar however, no concrete investigation was done and police Officer submitted the report without collecting sufficient material and the learned Magistrate relying on the aspect that dispute is civil in nature and civil suit is also pending, rejected the application of the petitioner vide impugned order dated 04.08.2023. [3.3] Being aggrieved and dissatisfied with the said order, the petitioner moved learned Sessions Judge, Jamnagar by way of filing Criminal Revision Application No.59/2023 which was turned down by the learned Sessions Judge vide impugned order dated 14.11.2024. [3.4] Being aggrieved and dissatisfied with both the impugned orders, the petitioner has filed the present petition. [4.0] Learned advocate for the petitioner has submitted that both the Courts below have committed error in dismissing the complaint filed by the petitioner by assigning reason that there was no sufficient proof was made available to the IO by the Bank as well as the Unique Mercantile Company and therefore, there was no clear conclusion on the part of the IO. Therefore, he has requested to allow the present petition and quash and set aside the orders passed by both the Courts below. [5.0] Learned APP has vehemently opposed the present petition and submitted that both the Courts below have not committed any error in law and no interference of this Court is required in exercise of powers under Article 226/227 of the Constitution of India read with Section 528 of the BNSS and therefore, has requested to dismiss the present petition. [6.0] Heard learned advocates for respective parties. [7.0] Going through the impugned orders and the averments made in the petition, it appears that the petitioner had filed the complaint against the respondent No.2 for the offence under Sections 406 , 409, 418, 420, 467, 468, 471, 504, 506(2) and 120(A)(B) of INDIAN PENAL CODE , 1860 and section 15(1) (2) of the CENTRAL CIVIL SERVICES RULES , 1955 whereupon the learned Magistrate ordered enquiry under Section 202 of the CrPC and directed the police to conduct investigation and submit report however, no concrete investigation being done and police officer has submitted the report without collecting sufficient material though without considering the said fact, learned Magistrate has committed an error in considering the fact that there was negligence on the part of the Investigating Officer though Bank of Baroda and Unique Mercantile Company who failed to provide documents as demanded by the Investigating Officer ignoring the said fact the report is considered and complaint is dismissed under Section 203 of the CrPC holding that no offence is made out as per the report submitted by the Investigating Officer. [8.0] Perusing the averments made in the complaint, it appears that complaint was filed under Section 202 of the CrPC in October, 2016 in connection of the alleged offence and after recording the statement of the petitioner, learned Magistrate sent the complaint under Section 202 of the CrPC for police enquiry and police has submitted the report on 04.12.2022. Initially the settlement talks were going on between the parties and inquiry was kept pending and subsequently the report was submitted opining that though incomplete documentary evidence from Bank of Baroda and Unique Mercantile Company but dispute is in connection of financial transaction and civil in nature and no any offence is made out. Considering the said report submitted by the police it is stated that the petitioner has filed civil suit also. [8.1] Thereafter, notice was issued to the petitioner –complainant by the learned Magistrate though original complainant – petitioner herein failed to raise any objection and failed to appear before the learned Magistrate. Hence, learned Magistrate has been pleased to consider the report submitted by the police and come to conclusion that the complaint does not disclose any basic elements of commission of any offence and considering the time period of alleged incident, no role of accused – respondent No.2 is found and neither the present petitioner nor her Advocate has raised any objection. Hence, under section 203 of the CrPC, complaint came to be dismissed. [8.2] Learned Revisional Court has also considered all the aspects and come to conclusion that there is no substance in the allegations levelled in the complaint. Even during the pendency of enquiry, agreements to sale and other release deeds without any consideration came to be executed and prima facie come to conclusion that there is a dispute between the parties civil in nature and in connection of the financial transaction and during the investigation, no iota of evidence is collected which suggests that with dishonest intention and fraudulently the proposed accused – respondent No.2 herein has received/got transferred amount in the joint bank account. In absence of any material collected by the police or any evidence produced before the learned Magistrate by the present petitioner, both the Courts below have not committed any error and even civil proceedings are pending between the parties. In absence of any material collected by the police or any evidence produced before the learned Magistrate by the present petitioner, both the Courts below have not committed any error and even civil proceedings are pending between the parties. [9.0] Insofar as proceeding under Section 202 of the CrPC is concerned, the scope and ambit of enquiry under Section 202 of the Code was succinctly laid down by Hon’ble Apex Court in the case of Chandra Deo Singh vs. Prakash Chandra Bose alias Chabi Bose and another reported in AIR 1963 SC 1430 . For determining the question whether any process is to be issued or not? What the learned Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for the conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. [9.1] The object of enquiry under Section 202 (1) itself is to ascertain the truth or falsehood of the complaint, but the learned Magistrate making enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint and the statements made before him by persons examined at the instance of the complainant but herein complainant has failed to do so or produce any material or any evidence though ample opportunity was given. [9.2] Similar view is also expressed by Hon’ble Supreme Court time and again in the case of Pepsi Foods Ltd. vs. Special Judicial Magistrate reported in (1998) 5 SCC 749 and in the case of National Bank of Oman vs. Barakara Abdul Aziz and Another reported in (2013) 2 SCC 488 , the Hon’ble Supreme Court in paragraph 9 held as under: “The duty of a Magistrate receiving a complaint is set out in Section 202 of the Cr.P.C. and there is an obligation on the Magistrate to find out if there is any matter which calls for investigation by a criminal court. The scope of enquiry under this Section is restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process has to be issued or not. The scope of enquiry under this Section is restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process has to be issued or not. Investigation under Section 202 of the Cr.P.C. is different from the investigation contemplated in Section 156 as it is only for holding the Magistrate to decide whether or not there is sufficient grounds for him to proceed further. The scope of enquiry under Section 202 of the Cr.P.C. is, therefore, limited to the ascertainment of truth or falsehood of the allegations made in the complaint;” [9.3] Further, the Hon’ble Supreme Court in the case of Shivjee Singh vs. Nagendra Tiwary and Others reported in (2010) 7 SCC 578 has also ruled in the same line. Thus, it is well settled proposition of law that one of the object, behind the provisions of Section 202 of the CrPC is to enable the learned Magistrate to scrutinize carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint. But there is also another object behind this provision and it is to find out what material there is to support the allegations made in the complaint. It is the bounden duty of the learned Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to book a person or persons against whom grave allegations are made. Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the basis of the material placed before him by the complainant. [9.4] In view of aforesaid proposition of law as well as the facts of the case on hand, it appears that herein, though ample opportunity was given to the petitioner to produce the further evidence to prove her case, but not opposed the report submitted by police, she failed to produce any evidence on record and even dispute is civil in nature and hence, both the Courts below have not committed any error. [10.0] Further, in the case of Mohit Singh vs. Reena Bagga & Ors. [10.0] Further, in the case of Mohit Singh vs. Reena Bagga & Ors. rendered in Criminal Appeal No.843 of 2024, the Hon’ble Supreme Court has observed and held that extraordinary and inherent powers of the Court do not confer any arbitrary jurisdiction on the Court to act according to its whims and caprice. Even, the powers under Articles 226 and 227 of the Constitution are very much limited as per the law laid down by the Hon’ble Supreme Court in the case of Radhe Shyam vs. Chhabi Nath reported in (2015) 5 SCC 423 . [11.0] Herein, no any relief sought or urged for to invoke the jurisdiction under Article 226 and under Article 227 of the Constitution no any ground is found to interfere either order passed by the learned Metropolitan Magistrate Court or learned Revisional Court both have not committed any error apparent on the face of the record or nothing emerges from the reasons assigned by the learned Magistrate any palpable, manifest or substantial error in interpretation of law is noticed in the order. Even, the powers under Article 227 of the Constitution are very much limited and as per the law laid down by the Hon’ble Supreme Court in the case of Radhe Shyam (Supra), wherein in paragraphs 18 and 23, it has been observed as under: “18. Thus, it has been clearly laid down by this Court that an Order of civil court could be challenged under Article 227 and not under Article 226.” “23. Thus, we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226. We are also in agreement with the view of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article 226.” Considering the aforesaid fact, the order of the learned trial Courts could be challenged under Article 227 but not under Article 226 of the Constitution of India. Herein, the petitioners have sought the prayer to quash and set aside the orders passed by the learned Metropolitan Magistrate Court and Revisional Court, both fall under the supervisory jurisdiction of Article 227 of the Constitution of India. Herein, the petitioners have sought the prayer to quash and set aside the orders passed by the learned Metropolitan Magistrate Court and Revisional Court, both fall under the supervisory jurisdiction of Article 227 of the Constitution of India. Considering the law laid down by the Hon’ble Supreme Court in the case of Radhe Shyam (Supra) , the judicial orders of Courts are not amenable to writ jurisdiction under Article 226 of the Constitution and jurisdiction under Article 227 is distinct from the jurisdiction under Article 226 of the Constitution. At this stage it is apposite to refer to the decision of the Hon’ble Supreme Court in the case of M/s. Garment Craft vs. Prakash Chand Goel reported in (2020) 4 SCC 181 , wherein in paragraph 77 it is held that High Court does not act as a Court of first appeal while exercising jurisdiction under Article 227 and to re-appreciate, re-weight evidence or fact except error apparent face on the record or perversity in findings. [12.0] In wake of aforesaid discussion, no any ground is found or case is made out to interfere with the impugned orders. Hence, present petition being devoid of any merit is hereby dismissed. Rule is hereby discharged.