Gujarat High Court
Ramjibhai vs State on 19 March, 2009
Author: M.R. Shah
Bench: M.R. Shah
Gujarat High Court Case Information System
Print
CR.MA/243020/2006 11/ 13 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 2430 of 2006
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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RAMJIBHAI
BHIKHABHAI PATEL & 2 - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================
Appearance :
MR
PS GONDALIYA FOR MR YOGESH S LAKHANI for
Applicant(s) : 1 - 3.
PUBLIC PROSECUTOR for Respondent(s) :
1,
SHRIKAR H BHATT for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 19/03/2009
ORAL
JUDGMENT
Present petition is preferred by the petitioners original accused under sec.482 of the Code of Criminal Procedure to quash the complaint / First Information Report being CR No.I-3 of 2006 registered with Botad Police Station by the respondent No.2 for the offences punishable under secs.306 read with sec.114 of Indian Penal Code.
A complaint / First Information Report being CR No.I-3 of 2006 is registered with Botad Police Station against the petitioners by the respondent No.2 original complainant for the offences punishable under sec.306 r/w sec.114 of Indian Penal Code on 24/2/2006 for the offences alleged to have committed on 4/5-3-2004 inter-alia alleging that the son of the complainant aged 19 years committed suicide consuming acid, as the original accused were harassing and threatening him. Being aggrieved by and dissatisfied with the same, the petitioners have preferred present petition under sec.482 of the Code of Criminal Procedure to quash the impugned complaint / First Information Report.
Mr.Gondalia, learned advocate appearing on behalf of the petitioner has vehemently submitted that as such for the very incident, one accidental death case was registered and the investigation was going on and during the said investigation, the original complainant preferred a private complaint before the learned the learned Judicial Magistrate (First Class), Botad on 1/6/2004 and as the investigation in the said accidental death case was going on, learned the learned Judicial Magistrate (First Class), Botad passed order u/s.210(1) of thwe Code of Criminal Procedure and thereafter, after a period of approximately two years, present complaint has been filed with the Botad Police Stanton without disclosing the private complaint being Criminal Inquiry Case No.21 of 2004. Therefore, it is submitted that as such the impugned complaint / First Information Report before the Botad Police Station can be said to be third complaint for the same incident and therefore, the same deserves to be quashed.
It is further submitted by Mr.Gondalia, learned advocate appearing on behalf of the petitioners that even considering the averments and allegations in the complaint, it cannot be said that the petitioners have committed offence under sec.306 read with sec.114 of Indian Penal Code. Therefore, it is requested to quash the impugned complaint even on merits also.
Learned advocate appearing on behalf of the petitioners has submitted the merits of the case also and relied upon the few judgements in support of his submissions that even on merits also no case is made out against the petitioners for the offences punishable under secs.306 read with sec.114 of Indian Penal Code and therefore, First Information Report should be quashed and set aside, however, for the reasons stated hereinafter, quashing of the complaint at this stage on merits would tantamount to dismissing the complaint filed by the complainant being Criminal Inquiry Case No.21 of 2004 pending in the court of learned the learned Judicial Magistrate (First Class), Botad and acquitting the accused persons and therefore, this Court is not considering further submissions on merits and entering into the merits of the case whether the petitioners have committed the offences for the offence punishable u/secs. 306 and 114 of Indian Penal Code or not. Therefore, the contention on behalf of the respective petitioners is that as a private complaint for the same incident is pending in the court of learned the learned Judicial Magistrate (First Class), Botad being Criminal Inquiry Case No.21 of 2004, second complaint is not maintainable and therefore, the impugned complaint / First Information Report deserves to be quashed and set aside.
Present petition is opposed by Mr.M.R. Mengdey, learned Additional Public Prosecutor. It is submitted that merely because for the same incident another complaint is filed, the same is no ground to quash the second complaint more particularly when the first complaint is before the learned Magistrate and second complaint is before the police. It is submitted that the legislature has contemplated the said eventuality and in such an eventuality, sec.210 of the Code of Criminal Procedure would come into play. It is submitted that in a case where the learned Magistrate at any stage of inquiry or trial comes to know that for the same incident one another complaint before the police is lodged and the investigation is going on by the police in that case, the Magistrate is required to follow procedure as required u/s.210 of the Code of Civil Procedure and is required to stay the further proceedings of the criminal complaint pending before him and has to wait till appropriate report is submitted by the police after investigation and thereafter if he is satisfied then he may call upon the complainant to make the submissions against the said report and thereafter the Magistrate may or may not accept the report. If the Magistrate does not accept the report, then in that case the Magistrate is required to proceed further with the criminal complaint pending before him. It is submitted that considering the provisions of sec.210 of the Code of Criminal Procedure second complaint is not required to be quashed and set aside. Therefore, it is submitted that one has to respect intention of the legislature and therefore, it is requested to dismiss the present petition.
It is also further submitted by Mr.Mengdey, learned Additional Public Prosecutor that this Court may not express any opinion on merits with respect to the allegations in the complaint / First Information Report as the same would tantamount to dismissing the private complaint pending before the learned the learned Judicial Magistrate (First Class) and acquitting the accused at this stage, which is not permissible.
Submitting accordingly it is requested to dismiss the present petition.
Heard the learned advocates appearing on behalf of the respective parties.
The main contention on behalf of the petitioners is that the second complaint being Criminal Inquiry Case No.21 of 2004 is pending before the learned the learned Judicial Magistrate (First Class), Botad for the same incident making same allegation, and therefore, second complaint before the police is not maintainable. It is further submitted that even the complaint filed before the learned the learned Judicial Magistrate (First Class), Botad is stayed by the learned the learned Judicial Magistrate (First Class), in view of the investigation by the police in an accidental death inquiry and therefore, present First Information Report can be said to be third complaint which is not maintainable and therefore, it is requested to quash the present complaint / First Information Report, such submission / contention cannot be accepted.
It is required to be noted that as such the investigation made by the police earlier was in an accidental death case. Before the police there was no complaint for the offence punishable under sec.306 read with sec.114 of Indian Penal Code against the petitioners. Subsequently, a private complaint being Criminal Inquiry Case No.21 of 2004 came to be filed by the father of the deceased and the son of the present complainant with the the learned Judicial Magistrate (First Class), Botad for the same incident and for the offences punishable under sec.306 read with sec.114 of Indian Penal Code and thereafter, the mother of the deceased has lodged the present complaint / First Information Report before the Botad Police Station with respect to the same incident. In view of the above, sec.210 of the Code of Criminal Procedure would be attracted. As per sec.210 of the Code of Criminal Procedure, during the pendency of any inquiry, investigation and/or trial by the learned Magistrate, if the Magistrate comes to know that with respect to the same incident, a complaint is registered with the police and the police is investigating into, in that case, the Magistrate is required to stay the further proceedings of case before him and has to wait till appropriate report is submitted by the police after investigation and thereafter the Magistrate may or may not accept the report and if he does not accept the report, in that case, he is required to proceed further with the inquiry / trial before him. Sec.210 of the Code of Criminal Procedure reads as under:-
Sec.210.Procedure to be followed when there is a complaint case and police investigation in respect to the same offence.-
When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.
If a report is made by the investigating police officer under sec.173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.
If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code.
Thus, the legislature contemplated such an eventuality of filing two complaints with respect to the same incident one before the Magistrate and another before the police and still the legislature never intended to dismiss the second complaint before the police. In such an eventuality, the Magistrate has to follow the procedure as required under sec.210 of the Code of Criminal Procedure but certainly second First Information Report before the police is not required to be quashed on the ground that earlier complaint is filed before the Magistrate. To quash the complaint on the aforesaid ground would be passing order contrary to intention of the legislature under sec.210 of the Code of Criminal Procedure, which is not permissible. Under the circumstances, the impugned First Information Report is not required to be quashed ion the aforesaid ground.
Now, so far as the contention on behalf of the petitioners that the investigation was going on by the police in an accidental death case and therefore, the learned the learned Judicial Magistrate (First Class), Botad stayed the further proceedings of Criminal Inquiry Case No.21 of 2004 and therefore, for the same incident, the impugned First Information Report / complaint is not permissible and the same deserves to be quashed and set aside, is concerned, it is required to be noted that the first complaint which was being investigated by the police was not for the offences punishable under sec.306 read with sec.114 of Indian Penal Code but the same was registered as accidental death case and the police was investigating the same. Present First Information Report and even private complaint is for the offence punishable under sec.306 read with sec.114 of Indian Penal Code. Therefore, the First Information Report / complaint is not required to be quashed and set aside. On the contrary, it prima facie appears that even the learned Magistrate was not justified in staying the further proceedings of Criminal Inquiry Case No.21 of 2004 in view of the earlier complaint / investigation by the police which was with respect to the accidental death case. Be that it may, even considering the second complaint / impugned First Information Report , the learned Magistrate is required to follow procedure under sec.210 of the Code of Criminal Procedure and has to wait till appropriate report is submitted by the concerned investigating officer even with respect to the present First Information Report.
Now, so far as the submission and contention on behalf of the respective petitioners, to the effect that even considering the averments and allegations in the impugned complaint / First Information Report, does not disclose any offence against the petitioners for the offence punishable under sec.306 read with sec.114 of Indian Penal Code, is concerned, the same are not required to be considered on merits at this stage. To consider the allegations and averments in the complaint / First Information Report at this stage on merits would tantamount to dismissing the private complaint being Criminal Inquiry Case No.21 of 2004 at this stage which is required to be done by the learned the learned Judicial Magistrate (First Class), considering sec.210 of the Code of Criminal Procedure. Therefore, to consider the case of the petitioners on merits in the impugned First Information Report / complaint at this stage is not permissible and is not warranted.
It is to be noted that the complainant before the learned the learned Judicial Magistrate (First Class), in the Criminal Inquiry Case No.21 of 2004 is not before this Court. under the circumstances also, no relief can be granted in the present proceedings which would amount to dismissing the said private complaint and acquitting the accused.
Under the circumstances and for the reasons stated above, present petition deserves to be dismissed and is accordingly dismissed. Rule is discharged. Interim relief granted earlier stands vacated forthwith. Considering the fact that the investigation with respect to the impugned First Information Report came to be stayed by this Court and sufficient time is already passed, the concerned Investigating Officer is hereby directed to complete the investigation with respect to the impugned First Information Report at the earliest and submit appropriate report before the learned the learned Judicial Magistrate (First Class), Botad in the pending Criminal Inquiry Case No.21 of 2004.
Registry is directed to send writ of this order to the concerned investigating officer and concerned Magistrate forthwith.
[M.R. SHAH, J.] rafik Top