Gujarat High Court
Rajeshkumar Ishwarbhai Desai vs State Of Gujarat on 9 September, 2022
Author: Gita Gopi
Bench: Gita Gopi
R/CR.MA/12806/2008 JUDGMENT DATED: 09/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 12806 of 2008
With
CRIMINAL MISC.APPLICATION (DIRECTION) NO. 1 of 2021
In
R/CRIMINAL MISC.APPLICATION NO. 12806 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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RAJESHKUMAR ISHWARBHAI DESAI
Versus
STATE OF GUJARAT & 5 other(s)
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Appearance:
MR AD SHAH with MR EKANT AHUJA (733) for the Applicant(s) No. 1
MR RASHESH A RINDANI(5380) for the Respondent(s) No. 6
MR SHIRISH H GOHIL(3253) for the Respondent(s) No. 6
MR PRANAV TRIVEDI, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
RULE UNSERVED for the Respondent(s) No. 2,3,4,5
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 09/09/2022
ORAL JUDGMENT
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1. The applicant herein the original complainant who is stated to be a victim of systematic fraud had come to know of the commission of serious offences by the respondents No.2 to 6, filed a private complaint before the learned Judicial Magistrate First Class, Bardoli.
2. It is alleged that the agricultural land bearing Survey No.115 and 116 having Block No.142 at Village Niyol was sold to respondents No.4 and 5 by respondents Nos.2 and 3 and thereby, filed a written complaint before the Athwa Police Station stating with active connivance, the accused got the Sale Deed registered with the help of forged and fabricated document. In the facts have alleged of forged General Power of Attorney, purportedly executed by the present applicant in favour of the respondent No.2, identified by Advocate Mr. N.C. Tiwari and notarized on 19.09.2006 before Advocate and Notary Mr. Bharat D. Bharathi, who had given a complaint about the forged nature of documents and use of seal of Notary public to be bogus and created. On the written complaint of the Notary, a First Information Report was registered bearing I-C.R. No.277 of 2007. After Page 2 of 29 Downloaded on : Sun Dec 25 01:29:09 IST 2022 R/CR.MA/12806/2008 JUDGMENT DATED: 09/09/2022 having learnt about the forged documents and registration of Sale Deed executed on 24.04.2001 being a victim alleging of systematic fraud perpetrated by the respondents No.2 to 5, present applicant submitted a written application to PSI, Palsana Police Station on 30.06.2007 for registration of the offences and for commencing the investigation. However, on enquiry it was found that though it was contemplated to register the First Information Report in accordance with the provisions of Section 154 of Code of Criminal Procedure, 1973 (hereinafter referred to in short as 'Cr.P.C.'), in pursuant to offences, no First Information Report was registered. Thereafter, the complainant moved the learned Judicial Magistrate First Class, Bardoli on 05.07.2007 to register and/or take cognizance of the case under Section 406, 420, 463, 464, 467, 468, 471 read with Section 114 of the Indian Penal Code. It is stated that the learned Judicial Magistrate First Class having noticed the fact that the complaint was before Palsana Police Station directed to postpone the hearing and called for the Report from the PSI, Palsana Police Station, in respect of the proceedings, Page 3 of 29 Downloaded on : Sun Dec 25 01:29:09 IST 2022 R/CR.MA/12806/2008 JUDGMENT DATED: 09/09/2022 in view of the provisions under Section 210 of Cr.P.C., calling for the Report of the PSI, Palsana Police Station to be submitted on or before 09.07.2007. The applicant states that the learned Judicial Magistrate First Class, Bardoli was required to read his complaint and decide about the registration. The learned Judicial Magistrate First Class read the police report and decided to register the complaint in the enquiry register and further directed to send the complaint of the complainant to Palsana Police Station under Section 202 of the Cr.P.C. and called upon the Police Officer to submit his Report within 30 days. The said order was passed on 09.07.2007.
3. It is submitted by the applicant that the learned Judicial Magistrate First Class before forwarding the complaint under Section 202 of the Cr.P.C. to Palsana Police Station did not record verification of the complaint filed on 05.07.2007 and thus has failed to maintain mandatory provision of Section 200 of Cr.P.C. which requires record of the examination of the complainant. It is thus urged that there is clear a violation of the provisions of Section 200 Cr.P.C. as Page 4 of 29 Downloaded on : Sun Dec 25 01:29:09 IST 2022 R/CR.MA/12806/2008 JUDGMENT DATED: 09/09/2022 they could not be any process undertaken for the cognizance of the matter, thus, the applicant being the original complainant contends that the order dated 09.07.2007 is absolutely illegal and unwarranted in the facts and circumstances of the case.
4. It is submitted that the Report of the PSI, Palsana Police Station was received on 09.07.2007, and that Police Inspector of Palsana Police Station on receipt of the complaint carried out the investigation and after recording the statement of the witness, the Investigating Officer came to the conclusion about serious offences of forgery of power of attorney and registered sale deed and recorded the statement of concerned witnesses. Further, the investigating officer mentioned in his Report that the original accused No.1 to 2 are not available for investigation and the original documents being in their possession, the police could not obtain the same for the opinion of the hand writing expert and finger print expert.
5. It is submitted that the Investigating Officer pointed about the use of bogus seals but the investigation to Page 5 of 29 Downloaded on : Sun Dec 25 01:29:09 IST 2022 R/CR.MA/12806/2008 JUDGMENT DATED: 09/09/2022 that fact is not completed. Thus, according to learned Advocate Mr. Ekant Ahuja, order dated 09.07.2007 in Inquiry No.9 of 2007 actually deprived the investigating agency to register the First Information Report to commence the investigation under Chapter XII of the Cr.P.C. and the complainant who is a victim of systematic fraud has been deprived of rightful effective investigation due to order of investigation under Section 202 of the Cr.PC., on failure of compliance of provisions of Section 200 which deals with examination of complaint for the purpose of taking cognizance and to determine as to whether the issuance of process is to be postponed or the process should be issued following the procedure under Section 202 / 204 of the Cr.P.C. which as submitted by learned Advocate Mr. Ahuja has resulted into great injustice to the complainant. A prayer is made to quash and set aside the proceedings of Criminal Case No.1814 of 2004 pending in the Court of learned Judicial Magistrate First Class, Baroda and to direct the Investigating Officer of Palsana Police Station to treat the complaint filed on 05.07.2007 for the purpose of Page 6 of 29 Downloaded on : Sun Dec 25 01:29:09 IST 2022 R/CR.MA/12806/2008 JUDGMENT DATED: 09/09/2022 investigation by following the procedure under Section 156(3) of Cr.P.C.
6. The applicant herein is the complainant who has made a prayer to quash and set aside the proceedings adopted by the Magistrate concerned in Criminal Case No.1814 of 2008. A perusal of the record shows that on 05.07.2007 a complaint was presented before the Magistrate. The learned Magistrate, Bardoli on that day was apprised of the fact that the complaint was also filed before the Police Station. The learned Magistrate postponed the hearing of the complaint following the procedure under Section 210 of the Cr.P.C. and directed the PSI, Palsana Police Station to produce the Report in connection with the procedure towards the complaint. The said Report was ordered to be produced before 09.07.2007. On 09.07.2007, the learned Magistrate passed an order to register the complaint in the enquiry register. The learned Magistrate read the complaint and ordered to send the complaint under Section 202 of the Cr.P.C. and directed the Police Station to produce the Report within 30 days in connection to the complaint.
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7. Learned Advocate for the applicant Mr. Ekant Ahuja took a exception to this order alongwith the order dated 05.07.2007 and submitted that the learned Judicial Magistrate First Class, Baroda before directing the complaint under Section 202 of Cr.P.C. ought to have recorded the verification of the complaint dated 05.07.2007 as it was mandatory for the Magistrate to follow the provisions of Section 200 of Cr.P.C. It is further submitted that the learned Tribunal instead of taking cognizance of the matter under Section 202 of the Cr.P.C. ought to have passed an order under Section 156(3) of Cr.P.C., so that the police could have investigated the matter and have recorded the statement of witnesses and further could have seized the documents in possession of the accused where the complainant has specifically alleged forgery and the police could have sent the same for FSL Report. It is also submitted that since the order is under Section 202 of the Cr.P.C., after cognizance of the matter, the total burden of the matter and producing the documents would fall on the complainant which would be onerous as the complainant would have no mechanism or method to procure the documents Page 8 of 29 Downloaded on : Sun Dec 25 01:29:09 IST 2022 R/CR.MA/12806/2008 JUDGMENT DATED: 09/09/2022 which are in the custody of the accused and send it for further investigation of an expert. It is further submitted that the order under Section 156(3) of Cr.P.C. would ultimately amount to direction to the police for registration of First Information Report and that would have given a wide scope to the Police to investigate the matter and to file the Report under Section 173 of the Cr.P.C. and even if no order comes to be passed under Section 202 of Cr.P.C., it is submitted by learned Advocate Mr. Ahuja that it was mandatory to examine the complainant for verification of the complaint, as without verification of the complaint under Section 200 of the Cr.P.C, no order under Section 202 of the Cr.P.C. could be passed for investigation directing the police to make enquiry and learned Advocate Mr. Ahuja further submits that any Report received from the Police would be without any jurisdiction as there is no verification of the facts stated by the complainant himself.
8. In support of his arguments, learned Advocate for the applicant Mr. Ekant Ahuja has relied on the following decisions of this Court :-
Page 9 of 29 Downloaded on : Sun Dec 25 01:29:09 IST 2022R/CR.MA/12806/2008 JUDGMENT DATED: 09/09/2022 Shankerbhai Mathurbhai Patel v. Ramanlal Vrajlal Patel reported in 1991 (1) GLR 387.
Anupam N. Chaudhary v. State of Gujarat reported in 2009 (1) GLH 610 and Ramanbhai Zanzarbhai Ghanghar v. State of Gujarat reported in 2012 (1) GLH 586.
In the case of Anupam N. Chaudhary (supra), while referring to the decision in the case of Shankerbhai Mathurbhai Patel v. Ramanlal Vrajlal Patel reported in 1991 (1) GLR 387, it has been held in Paragraph 2 as under :-
"2. There is no dispute about the fact that while entertaining the complaint and taking cognizance of the offence for the purpose of proceeding under Chapter XV of Cr.P.C., the basic requirement of examining the complainant on oath was not fulfilled and hence the summons issued to the petitioner was liable to be set aside. However, as discussed in detail in Special Criminal Application No.53 of 2009, recently decided by this Court, the matter was required to be remanded to the trial for expeditiously deciding the matter afresh, following recent judgment of the Supreme Court dated 23.09.2008 in Ketankumar Babulal Patel v. Kesarben Jesangji [2008 AIR SCW 6975]. Since it could not be said that the complaint itself did not disclose any offence the complaint itself could not be quashed and hence the petition is partly allowed with the direction that the summons issued to the petitioner on the basis of the orders dated Page 10 of 29 Downloaded on : Sun Dec 25 01:29:09 IST 2022 R/CR.MA/12806/2008 JUDGMENT DATED: 09/09/2022 16.12007 and 11.9.2007 are set aside. In the peculiar facts and circumstances and in the interest of justice, it would be open for learned magistrate to examine the complainant on oath and then order fresh investigation or adopt the report of investigation already carried out by the police for the purpose of proceeding further under section 203 or 204 of Cr.P.C. after application of mind afresh and in accordance with law."
In the case of Ramanbhai Zanzarbhai Ghanghar (supra) it has been held in Paragraphs 5.1 and 5.2 as under :-
"5.1. Identical question came to be considered by the Hon'ble Supreme Court in the case of Sachida Nand Singh (Supra) as well as in the case of Iqbal Singh Marwah and Anr. (Supra) and it is specifically held by the Hon'ble Supreme Court in the said decisions that the bar under Section 195(1)(b)(ii) of the CrPC would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in proceeding in any Court i.e. during the time when the document was in custodia legis. If the allegations are that first document was forged and thereafter the same was produced in the Court and/or Court proceedings in that case the bar under Section 195(1)(b)(ii) of the CrPC would not be attracted. Under the circumstances, the learned Magistrate as well as the learned Revisional Court has materially erred in dismissing the complaint on the ground that there would be a bar under Section 195(1)(b)(ii) of the CrPC.
5.2. Now, so far as the observation made by the Revisional Court that as there was no verification of the complainant on oath as required under Section 200 of the CrPC and therefore, the learned Magistrate was not justified in ordering inquiry under Section 202 of the CrPC and therefore, even otherwise the complaint deserves to be Page 11 of 29 Downloaded on : Sun Dec 25 01:29:09 IST 2022 R/CR.MA/12806/2008 JUDGMENT DATED: 09/09/2022 quashed and set aside is concerned, it is required to be noted that on the ground that the complainant was not examined on oath and/or verification of the complainant was not recorded on the complaint, the complaint as a whole cannot be quashed and set aside. At the most if the learned Magistrate has taken the cognizance and issued the process and/or has passed any order for inquiry under Section 202 of the CrPC in a complaint without recording the verification of the complainant, in that case the order passed by the learned Magistrate taking cognizance is required to be quashed and set aside and the matter is to be remanded to the learned Magistrate from the stage of verification. Under the circumstances, to that extent the observation made by the learned Revisional Court cannot be sustained. The view which is being taken by this Court is supported by the decision of this Court in the case of Anupam N. Chaudhary (Supra) and the decision of the Bombay High Court in the case of M/s. Nova Electricals, Jalgaon (Supra). It is observed in the aforesaid decision that the verification of the complainant as required under Section 200 of the CrPC is not a mere formality and the Magistrate has to ascertain thereby whether the complaint is genuine or frivolous. It is further held that for omission by the Court to record verification, the complainant cannot be penalized for it and on that ground the complaint cannot be quashed. The proper course is to quash the order issuing process and the trial Court is to proceed further from the stage of verification."
9. The ambit of Section 210 of Cr.P.C. clarifies the procedure to be followed when there is a complaint case and police investigation in respect of the same offence when it is made to appear to the Magistrate, during the course of the enquiry or trial held by the Magistrate, that an investigation by the police is in Page 12 of 29 Downloaded on : Sun Dec 25 01:29:09 IST 2022 R/CR.MA/12806/2008 JUDGMENT DATED: 09/09/2022 progress in relation to the offence which is the subject matter of the enquiry or trial, the Magistrate shall stay the proceedings or such inquiry or trial and shall call for a report on the matter from the police officer conducting the investigation. This Section incorporated in Cr.P.C. is to guard against collusion, and to prevent from the necessity to take cognizance of the same offence twice. The object of the section is not to harass a person twice and also not to authorise a person to vindicate his honour when the case is being investigated by the police. To avoid taking cognizance of the same offence twice, the preventive measures under sub-section (1) of Section 210 of the Cr.P.C. has been provided, authorising the learned Magistrate to stay the proceedings before him and to call for the Report from the Police Officer investigating the matter. While sub-section (1) is the preventive measure, sub-section (2) of Section 210 of Cr.P.C. is a cure. However, it is to be noted that Section 210 of Cr.P.C. would not be applied in cases where police have no power to file charge-sheet. The purpose behind statutory power of the Magistrate appears to be that no injustice is done at the Page 13 of 29 Downloaded on : Sun Dec 25 01:29:09 IST 2022 R/CR.MA/12806/2008 JUDGMENT DATED: 09/09/2022 investigation level, where the police has not registered the case nor started the investigation, then the question of calling report from the police about investigation would not arise.
10. Sub-section (2) of Section 210 of Cr.P.C. is regarding the compliance of the order of learned Magistrate calling for report from the investigating officer. If a report is made by the investigating police offer under Section 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. Where the magistrate has taken cognizance of the offence not on the basis of final report submitted under section 173(2) but on the basis of the complaint, Section 210 of the Cr.P.C. does not apply and it is not necessary for the Magistrate to consolidate the final report with the complaint case. The provision for staying the proceedings in the complaint case is not to stay the Page 14 of 29 Downloaded on : Sun Dec 25 01:29:09 IST 2022 R/CR.MA/12806/2008 JUDGMENT DATED: 09/09/2022 complaint case indefinitely till the investigation in the police case is over or till the filing of the final report but for the purpose of calling for report from the police officer to examine whether or not to proceed with the complaint case, in view of sub-section (2) and (3) Section 210 of the Cr.P.C. Under sub-section (2) if a Report is made by the investigating police officer under section 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.
11. Merger of complaint case into police case contemplates two essential requirements (a) on the submission of the police report, the Magistrate must take cognizance of "any offence"; it need not be "the offence" mentioned in sub-section (1); (b) the accused on the police report must be the same accused in the complaint case which was stayed, even if only one accused is common to the police report and the complaint case, that would hold good the merger, but in regard to the persons not mentioned Page 15 of 29 Downloaded on : Sun Dec 25 01:29:09 IST 2022 R/CR.MA/12806/2008 JUDGMENT DATED: 09/09/2022 in the police report, sub-section (3) will apply. However it requires clarification that the merger so expected is to try both the case together. When joint trial is permitted, there cannot be amalgamation of cases. The trial is to be tried together as if both the cases were instituted on a police report.
12. In the police case, the Public Prosecutor or Additional Public Prosecutor conducts the case, the complainant could not adduce evidence except under the direction of Public Prosecutor / Additional Public Prosecutor. In the complainant's case it is the right and duty of the complainant to adduce evidence. In Harjinder Singh v. State of Punjab reported in AIR 1985 SC 404, what is meant by 'joint trial' and 'consolidation of cases' has been explained in Paragraph 8.
"8. In the facts and circumstances of this particular case we feel that the proper course to adopt is to direct that the two cases should be tried together by the learned Additional Sessions Judge but not consolidated i.e. the evidence should be recorded separately in both the cases one after the other except to the extent that the witnesses for the prosecution who are common to both the cases be examined in one case and their evidence be read as evidence in the other. The learned Additional Sessions Judge should after recording the evidence of the prosecution witnesses in one case, withhold his judgment Page 16 of 29 Downloaded on : Sun Dec 25 01:29:09 IST 2022 R/CR.MA/12806/2008 JUDGMENT DATED: 09/09/2022 and then proceed to record the evidence of the prosecution in the other case. Thereafter he shall proceed to simultaneously dispose of the cases by two separate judgments taking care that the judgment in one case is not based on the evidence recorded in the other case. In Kewal Krishan's case (AIR 1980 SC 1780), supra, this Court had occasion to deal with a situation as the present, where two cases exclusively triable by the Court of Sessions, one instituted on a police report under Section 173 of the Code and the other initiated on a criminal complaint, arose out of the same transaction. The Court observed that to obviate the risk of two courts coming to conflicting findings, it was desirable that the two cases should be tried separately but by the same court. The High Court was largely influenced in upholding the order of the Additional Sessions Judge by the fundamental right of the accused guaranteed by Article 20(2) of the Constitution and Section 300 of the Code which provides that no person shall be prosecuted and punished for the same offence more than once. If there is no punishment for the offence as a result of the prosecution, Sub-clause (2) of Article 20 has no application. The constitutional right guaranteed by Article 20(2) against double jeopardy can still be reserved if the two cases are tried together but not consolidated i.e. the evidence be recorded separately in both cases and they be disposed of simultaneously. Further, the second prosecution must be for the 'same offence'. If the offences are distinct, there is no question of the rule as to double jeopardy being applicable."
12.1. After perusal of Report if it is found that the police report does not relate to any accused in the complaint case, or the Magistrate does not take cognizance of any offence on the police report, it becomes necessary for the Magistrate to proceed with the enquiry or trial which was stayed. The Page 17 of 29 Downloaded on : Sun Dec 25 01:29:09 IST 2022 R/CR.MA/12806/2008 JUDGMENT DATED: 09/09/2022 procedure then to be followed would be as per the provisions of Cr.P.C. To try together both the cases, the cognizance is taken by the Magistrate, of any offence, against any accused in the complaint case on the report of the Police. Once the police have submitted a report stating that the accused have committed the offence then the case shall be treated as a case instituted on a police report. In that event, the complainant need not appear before the Magistrate in his capacity as the complainant, nor can the Magistrate dismiss the complaint on the ground of absence of the complainant when the offence is a cognizable one, but when the Magistrate does not take cognizance on the police report, he should proceed to dispose of the complainant's case as a separate case.
13. In a case where the Magistrate does not stay the complaint case, instead takes cognizance of the offence or passes an order deciding an enquiry under Section 202 of Cr.P.C., is not without jurisdiction / nullity. Non-compliance with the provisions of Section 210 of Cr.P.C. is not fatal to the prosecution Page 18 of 29 Downloaded on : Sun Dec 25 01:29:09 IST 2022 R/CR.MA/12806/2008 JUDGMENT DATED: 09/09/2022 unless error, omission or irregularity has resulted in failure of justice. But it is proper that the Magistrate stays the proceedings in the complaint case when he comes to know of the pending investigation. Where the contents of the complaint show that the original complainant had given the complaint to the police and it is under investigation, then the Magistrate should follow the procedure as required under Section 210 of Cr.P.C. instead of issuing process on the strength of complaint. Police Report is a material placed on record for consideration by Court to arrive at a conclusion whether to accept or reject it and whether to issue process under Section 203 of the Cr.P.C.
14. During pendency of investigation, the Magistrate can take cognizance under Section 190(1)(a) on second complaint. However, he must stay the proceedings, the continuance of the enquiry under Section 200 and 202 of Cr.P.C. is without jurisdiction. The order of the Magistrate referring the complaint for investigation under Section 156(3) of Cr.P.C. is a judicial order. He cannot recall the order by way of Page 19 of 29 Downloaded on : Sun Dec 25 01:29:09 IST 2022 R/CR.MA/12806/2008 JUDGMENT DATED: 09/09/2022 stay in purported exercise of his power under Section 210 of Cr.P.C. Where the Magistrate has referred the complaint to the police for enquiry under Section 202 of the Cr.P.C., he would not take cognizance of the offence till the receipt of police report where the Magistrate has referred the complaint for enquiry and report under Section 156(3) of the Cr.P.C., on the receipt of the report he cannot adopt the procedure under Sections 200 to 203 of Cr.P.C. and take cognizance on the basis of complaint and in case when a complaint with more details is filed after Magistrate has taken cognizance on police report, complaint is not barred by the principle of double jeopardy.
15. Taking into consideration the proposition of law as laid down in the above referred judgments, that unless and until as referred it has been held that without verification of the complainant on oath as required under Section 200 of the Cr.P.C., it was not justifiable for the learned Magistrate to order enquiry under Section 202 of the Cr.P.C. In the case of Shankarbhai Mathurbhai Patel (supra), it has been specifically observed by a joint reading of Section 200 Page 20 of 29 Downloaded on : Sun Dec 25 01:29:09 IST 2022 R/CR.MA/12806/2008 JUDGMENT DATED: 09/09/2022 read with Section 202(b) that the Judicial Magistrate before conducting enquiry ought to have examined the complainant and his witnesses, and having referring to the settled position, it was observed that the learned Magistrate has no jurisdiction to direct the police under Section 202 the process issued on receiving the Report from the police is without jurisdiction.
16. Here, in this case, on the date the complaint was filed before the Magistrate on considering the complaint before the police, ordered for stay under Section 210 of Cr.P.C. and postponed the matter for hearing of complaint, and called for report from Palsana PSI in connection with the proceeding to the complaint before the police. After seeking the Report by an order dated 09.07.2007 sent the complaint to Palsana Police Station under Section 202 of the Cr.P.C. by ordering the institution of the complaint in enquiry register and called for the report within 30 days. The learned Judicial Magistrate First Class, Bardoli passed the process against the accused No.1 to 4 under Sections 420, 468, 471, 464 and 114 of the Indian Penal Code and summons was issued Page 21 of 29 Downloaded on : Sun Dec 25 01:29:09 IST 2022 R/CR.MA/12806/2008 JUDGMENT DATED: 09/09/2022 under Section 204 of the Cr.P.C. making it returnable against the accused on 30.04.2008. While passing the order below Enquiry Application No.9 of 2007, the learned Magistrate has only acknowledged the receipt of the Report of the police and the witnesses recorded. However, the order does not specify any statement of the witnesses recorded by the police nor gives details of the Report. The infirmity in the Report was brought to the notice of the learned Magistrate where it was argued that the investigating Officer has not made a complete investigation and from the very beginning, the complainant has alleged of the power of attorney being forged and it was also brought to the notice of the Magistrate that the said power of attorney was not seized by the Police and there was no investigation to that aspect, therefore, prayer was made for sending the matter for re- investigation. The order below Exhibit I shows that the learned Magistrate has failed to take these facts into consideration, however had observed that the complaint and police investigation papers have been considered alongwith the arguments. The facts of the complaint was noted and the learned Magistrate did Page 22 of 29 Downloaded on : Sun Dec 25 01:29:09 IST 2022 R/CR.MA/12806/2008 JUDGMENT DATED: 09/09/2022 not find any prima-facie case against the respondents No.5 and 6, the Advocate and the Notary and ordered to send the process against the accused No.1 to 4 and 7. The order has been made under Section 204 of the Cr.P.C. for issuance of summons to accused No.1 to 4 and 7. Admittedly there is no verification of the complainant. The process issued is only on reading the complaint and police papers, while no reliance has been placed on the police report to issue summons to the accused.
16.1. Section 202 of the Cr.P.C. is the guidelines to the Magistrate. In case, any Magistrate postpones the issuance of process against the accused and decides to inquire into the case himself or directs an investigation to be made by a Police Officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. The proviso to sub-section (1) clarifies that no such direction for investigation shall be made, unless the complainant and witnesses present if any have been examined on oath under Section 200 of Cr.P.C.
Page 23 of 29 Downloaded on : Sun Dec 25 01:29:09 IST 2022R/CR.MA/12806/2008 JUDGMENT DATED: 09/09/2022 16.2. In the case on hand, the order dated 05.07.2007 staying the hearing of the complain was in accordance to the provisions of Section 210 of Cr.P.C., but the order on 09.07.2007 ordering the registration of the complaint and sending the complaint to the Palsana Police Station under Section 202 of the Cr.P..C. is bad in law, since no such direction can be given without examining the complainant and witnesses present on oath.
17. In the case of Sakiri Vasu v. State of Uttar Pradesh and Others reported in 2008 2 SCC 409, the Hon'ble Apex Court held as under :-
"11. In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154 Cr.P.C., then he can approach the Superintendent of Police under Section 154(3) Cr.P.C. by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156 (3) Cr.P.C. before the learned Magistrate concerned. If such an application under Section 156 (3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.Page 24 of 29 Downloaded on : Sun Dec 25 01:29:09 IST 2022
R/CR.MA/12806/2008 JUDGMENT DATED: 09/09/2022
18. In the case of Mohd. Yousuf v. Afaq Jahan (Smt) and Another reported in 2006 (1) SCC 627, the Hon'ble Apex Court held that registration of an First Information Report involves only the process of entering the substance of the information relating to commission of the cognizable offence in a book kept by the officer in charge of the police station. It was further held that it was the duty of the officer in charge of the police to register a First Information Report when investigation under Section 156(3) of Cr.P.C. is directed by the Magistrate, even when the Magistrate explicitly does not say so. It was also held that any Judicial Magistrate before taking cognizance of the offence, can order investigation under Section 156(3) of the Cr.P.C. But if he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the Page 25 of 29 Downloaded on : Sun Dec 25 01:29:09 IST 2022 R/CR.MA/12806/2008 JUDGMENT DATED: 09/09/2022 commission of the cognizable offence in a book kept by the officer in charge of the police station. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of Cr.P.C. that an FIR should be registered, it is duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complainant because that police officer could take further steps contemplated in Chapter XII Cr.P.C. only thereafter. The investigation started thereafter can end up only with the report filed by the police as indicated in Section 173 of the Code. The investigation contemplated in that chapter can be commenced by the police even without the order of a Magistrate. But that does not mean that when a Magistrate orders an investigation under Section 156(3) it would be a different kind of investigation. Such investigation must also end up only with the report contemplated in Section 173 of the Code. But the significant point to be noticed is, when a Magistrate orders investigation under Chapter XII he does so before he takes cognizance of the offence.
But a Magistrate need not order any such Page 26 of 29 Downloaded on : Sun Dec 25 01:29:09 IST 2022 R/CR.MA/12806/2008 JUDGMENT DATED: 09/09/2022
investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Code. A reading of Section 202(1) of the Code makes the position clear that the investigation referred to therein is of a limited nature. The Magistrate can direct such an investigation to be made either by a police officer or by any other person. Such investigation is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further. This can be discerned from the culminating words in Section 202(1) i.e. "or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding". This is because he has already taken cognizance of the offence disclosed in the complaint, and the domain of the case would thereafter vest with him. Chapter XII of the Code contains provisions relating to "information to the police and their powers to investigate", whereas Chapter XV, which contains Section 202, deals with provisions relating to the steps which a Page 27 of 29 Downloaded on : Sun Dec 25 01:29:09 IST 2022 R/CR.MA/12806/2008 JUDGMENT DATED: 09/09/2022 Magistrate has to adopt while and after taking cognizance of any offence on a complaint. Provisions of the above two chapters deal with two different facets altogether, though there could be a common factor i.e. complaint filed by a person. Section 156, falling within Chapter XII deals with powers of the police officers to investigate cognizable offences. True, Section 202, which falls under Chapter XV, also refers to the power of a Magistrate to "direct an investigation by a police officer". But the investigation envisaged in Section 202 is different from the investigation contemplated in Section 156 of the Code.
18.1. Difference between the procedure to be adopted for an order under Section 156(3) and Section 202 of Cr.P.C. become obvious. While sending the complaint under Section 156(3) of Cr.P.C., no cognizance is taken, hence verification of complaint is not required, while order under Section 202 of Cr.P.C. is a stage of cognizance and any inquiry on own by the Magistrate or direction for investigation by the police officer or by such other person, as Magistrate thinks fit should Page 28 of 29 Downloaded on : Sun Dec 25 01:29:09 IST 2022 R/CR.MA/12806/2008 JUDGMENT DATED: 09/09/2022 be preceded by examination of complainant and witness present on oath under Section 200 of Cr.P.C.
19. In view of the above, the orders dated 09.07.2007 and 29.03.2008 below Exhibit 1 in Enquiry Application No.9 of 2007 stands quashed and set aside with a direction to the learned Magistrate to decide the mode of investigation as to whether it should be in accordance with Section 156(3) of the Cr.P.C. or under Section 202 of the Cr.P.C. If at all, the learned Magistrate considers to take cognizance of the matter then necessary verification in accordance to the provisions of Section 200 of Cr.P.C. be followed.
20. In view of the order passed today in the main matter, no order is required to be passed in the Criminal Miscellaneous Application (for Direction) No.1 of 2021 and the same stands disposed of accordingly.
Sd/-
(GITA GOPI, J) CAROLINE Page 29 of 29 Downloaded on : Sun Dec 25 01:29:09 IST 2022