Gujarat High Court
Govindbhai Kavabhai Maru vs State Of Gujarat on 18 April, 2024
NEUTRAL CITATION
R/SCR.A/2377/2018 ORDER DATED: 18/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 2377 of
2018
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GOVINDBHAI KAVABHAI MARU
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR TULSHI R SAVANI(3070) for the Applicant(s) No. 1
MR DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
UNSERVED WANT OF TIM for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 18/04/2024
ORAL ORDER
1. By way of preferring present petition under Articles 226 and 227 of the Constitution of India read with Section 482 of the Criminal Procedure Code, 1973, (hereinafter be referred to as the 'Code' for short) the petitioner has prayed to quash and set aside the order dated 30.01.2018 passed in Criminal Revision Application No.8 of 2017 by the learned 6 th Additional Sessions Judge, Bardoli and thereby directed the concerned Investigating Officer to carry out further investigation under Section 173(8) of the Code as sought for by the petitioner.
2. Heard learned advocate Mr. Tulshi R. Savani for the petitioner and learned APP Mr. Dhawan Jayswal for the respondent - State.
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3. Learned advocate Mr. Savani submits that if this Hon'ble Court would go through the factual aspects of the matter, in that event, it would be found out that there is checkered history in the present matter. Learned advocate Mr. Savani submits that the petitioner herein is the original complainant and he has preferred an application in the form of complaint under Section 154 of the Code, however, for the reasons best known to the investigating officer, he has not registered the FIR against the accused persons. Therefore, the petitioner has no other option left but to approach to the concerned Judicial Magistrate First Class, Bardoli by way of preferring private complaint under Section 156(3) of the Code. Hence, he has engaged an advocate and registered private complaint before the competent Court. Learned advocate Mr. Savani further submits that the petitioner - original complainant came with a specific case that accused persons have created forged and fabricated documents and on the strength of the said documents they have cheated the complainant and therefore for the purpose of collecting the material against the accused persons, interference of the police is needed. Learned advocate Mr. Savani submits that after considering and appreciating the material available on record, the learned Judicial Magistrate First Class, Palsana has partly considered the prayer made in the complaint filed under Section 156(3) of the Code and directed the concerned Police Officer to register Page 2 of 15 Downloaded on : Thu Apr 25 20:30:51 IST 2024 NEUTRAL CITATION R/SCR.A/2377/2018 ORDER DATED: 18/04/2024 undefined complaint under Section 406 IPC. On the strength of the order passed by the learned Judicial Magistrate First Class, Palsana, M Case No.2 of 2012 came to be registered by the concerned police officer. During the pendency of the investigation, the petitioner came to know that investigating officer has not carried out the investigation in its proper manner and tried to favour the accused persons and created pressure upon the petitioner to settle the dispute with the accused persons. Therefore, petitioner - original complainant has preferred an application on 15.01.2013 to the DSP, Surat with a sole intent to transfer the investigation. It is found out from the record that no heed was paid to the request made by the complainant and investigation was continued with the said police officer and ultimately at the end of the day, the said police officer has filed 'B' summary report before the competent Court. Thereafter, a notice was issued by the learned Court which was duly served to the petitioner and therefore he appeared before the concerned Court through advocate and raised objections about the maintainability of the 'B' summary report filed by the investigating officer. Learned advocate Mr. Savani further submits that petitioner has also preferred an application under Section 173(8) of the Code and prayed that further investigation is required to be carried out. The petitioner came with a specific case that from very inception, he was of the opinion that the concerned police officer has not Page 3 of 15 Downloaded on : Thu Apr 25 20:30:51 IST 2024 NEUTRAL CITATION R/SCR.A/2377/2018 ORDER DATED: 18/04/2024 undefined carried out investigation in proper manner and the investigating officer is biased one and always favouring the accused persons and that is why he had submitted an application to the DSP, Surat for transfer of the investigation. Therefore, further investigation is required to be carried out and the said 'B' Summary Report is not required to be accepted and further investigation is to be entrusted to neutral police officer. After considering and appreciating the material available on record as well as arguments canvassed by learned advocates of the rival parties, the learned Judicial Magistrate First Class, Palsana thought it fit to issue process against the accused under Section 204 of the Code for the offence punishable under Sections 406 and 114 of the IPC and by passing the said order, the learned JMFC rejected the 'B' Summary Report submitted by the investigating officer concerned.
4. Being aggrieved by and dissatisfied with the said order dated 18.03.2017 passed by the Judicial Magistrate First Class, Palsana below Exh.1 application in M. Case No.2 of 2012, the petitioner - original complainant has preferred Criminal Revision Application No.8 of 2017 before the Revisional Court with a request to quash and set aside the order dated 18.03.2017 passed by the learned Judicial Magistrate First Class, Palsana and direction be issued to the concerned police officer to carry out further investigation under Section 173(8) of the Code as per Page 4 of 15 Downloaded on : Thu Apr 25 20:30:51 IST 2024 NEUTRAL CITATION R/SCR.A/2377/2018 ORDER DATED: 18/04/2024 undefined the original complaint filed by the complainant and file charge-sheet against the accused persons. Having gone through the record and proceedings, the learned Revisional Court has come to the conclusion that the judgment and order passed by the learned Magistrate is just, fair and reasonable and based upon the sound principle of law and there is no perversity found in the operative part of the order.
5. Learned advocate Mr. Savani submits that being aggrieved by and dissatisfied with the judgment and order dated 30.01.2018 passed by the Revisional Court in Revision Application No.8 of 2017, the petitioner has preferred present petition inter alia praying for quashing and setting aside the above stated order passed by the Revisional Court.
6. Learned advocate Mr. Savani submits that from the very inception, at the time of preferring private complaint before the competent court, there was clear and consistent stand on the part of the petitioner - original complainant by narrating the entire sequence of facts and events specifically stating that he was cheated by the accused persons by creating false and fabricated documents and on the strength of the said documents, complainant was taken into confidence to enter into a particular transaction.
7. Learned advocate Mr. Savani submits that at the time of institution of the complaint, learned Judge Page 5 of 15 Downloaded on : Thu Apr 25 20:30:51 IST 2024 NEUTRAL CITATION R/SCR.A/2377/2018 ORDER DATED: 18/04/2024 undefined ought to have ordered under Section 156(3) of the Code against the accused persons and instead of considering the complaint of the complainant in its entirety, the learned Judge has partly allowed the prayer of the complainant by permitting to carry out investigation under Section 406 IPC and on the strength of the order passed by the learned Judge, M. Case was registered and ultimately it was converted into registration of the FIR before the concerned police station. As, during the course of investigation, IO has tried to create pressure upon the complainant to settle the dispute with the accused persons, complainant was constrained to prefer an application before the D.S.P., Surat for transfer of the investigation specifically stating that investigating officer is biased one and there are all possible chances that proper investigation should not be carried out by the said officer. However, the said application has not been considered by the DSP, Surat and ultimately at the end of the day, the investigating officer has submitted 'B' Summary Report before the competent Court which clearly goes on to show that the apprehension of the complainant comes true. Thereafter, the petitioner has filed his objections before the concerned Court by specifically stating that the said 'B' Summary Report is required to be rejected at threshold and on the contrary on the basis of the material available on record, proceedings are required to be initiated against the accused persons. Not only that he has Page 6 of 15 Downloaded on : Thu Apr 25 20:30:51 IST 2024 NEUTRAL CITATION R/SCR.A/2377/2018 ORDER DATED: 18/04/2024 undefined also prayed to direct the investigating officer to carry out further investigation under Section 173(8) of the Code. The said application of the petitioner has partly been allowed by the learned Judge by rejecting the 'B' Summary Report submitted by the investigating officer. However, the prayer prayed for by the petitioner with regard to further investigation under Section 173(8) of the Code has not been considered by the learned Judge. Therefore, being aggrieved by and dissatisfied with the aforesaid order, the petitioner preferred Revision Application before the Revisional Court. However, the said revision application came to be rejected by the revisional court by specifically observing that the order passed by the learned Magistrate is just, fair and reasonable and based upon the sound principle of law and there is no perversity found in the operative part of the order.
8. Learned advocate Mr. Savani submits that he is well aware about the fact that when two different courts have passed order and the resultant effect of the order would be based upon the concurrent findings of facts, in that event, the scope of interference by this Hon'ble Court would be very limited. But, considering the ground reality of the facts, present petition is required to be entertained as both the learned Courts below have failed to consider and appreciate the material available on record in its true spirit and proper perspective. Thus, considering Page 7 of 15 Downloaded on : Thu Apr 25 20:30:51 IST 2024 NEUTRAL CITATION R/SCR.A/2377/2018 ORDER DATED: 18/04/2024 undefined the above stated factual aspects, the judgments and orders passed by both the Courts are required to be quashed and set aside by allowing present petition and directing further investigation under Section 173(8) of the Code.
9. Learned APP Mr. Jayswal for the respondent State has objected present petition with vehemence and submitted that the judgment and order passed by the learned Magistrate is just, fair and reasonable and based upon sound principle of law and after considering and appreciating all the materials available on record the said order is passed. The learned Revisional Court has also considered the said factual aspects and in the operative part of the order, Revisional Court has specifically observed that at the time of appreciating the material available on record, learned Magistrate has considered all the material available on record and thought it fit to pass an order whereby process came to be issued against the accused persons. However, learned Revisional Court has confirmed the judgment and order passed by the learned Magistrate, whereby, the learned Magistrate has not considered the application preferred by the petitioner under Section 173(8) of the Code for the purpose of carrying out further investigation, considering the facts and circumstances of the case and material available on record before it. Learned APP Mr. Jayswal further submits that when the petition is preferred Page 8 of 15 Downloaded on : Thu Apr 25 20:30:51 IST 2024 NEUTRAL CITATION R/SCR.A/2377/2018 ORDER DATED: 18/04/2024 undefined challenging the judgments and orders based upon the concurrent findings of facts passed by two different Courts, the scope of interference at the hand of this Hon'ble Court would be very limited. Thus, when there are concurrent findings of fact recorded by both the Courts below, this Court may not interfere with the said orders and accordingly this petition may be dismissed.
10. I have heard the learned advocates of the rival parties. I have also considered the material placed on record. It is the case of the petitioner - original complainant that accused persons have created false and fabricated documents and on the strength of the said documents they have cheated the complainant and therefore he has preferred an application in the form of complaint under Section 154 of the Code before the concerned Police Station, however, for the reasons best known to the concerned police officer, he has not registered the FIR against the accused persons. Therefore, the petitioner approached before the Judicial Magistrate First Class, Bardoli by way of preferring private complaint under Section 156(3) of the Code. After considering and appreciating the material available on record, the learned Judicial Magistrate First Class, Palsana has partly allowed the said application and directed the concerned Police Officer to register a complaint for the offence punishable under Section 406 IPC. On the strength of the order passed by the learned Page 9 of 15 Downloaded on : Thu Apr 25 20:30:51 IST 2024 NEUTRAL CITATION R/SCR.A/2377/2018 ORDER DATED: 18/04/2024 undefined Judicial Magistrate First Class, Palsana, M Case came to be registered by the concerned police officer. It is the case of the petitioner that during the pendency of the investigation, the petitioner came to know that investigating officer has not carried out the investigation in its proper manner and he has tried to favour the accused persons and created pressure upon the petitioner to settle the dispute with the accused persons. Therefore, petitioner - original complainant has preferred an application on 15.01.2013 to the higher police authority with a request to transfer the investigation. However, no heed was paid to the request made by the complainant and investigation was continued with the said police officer and ultimately the said police officer has filed 'B' Summary Report against the accused persons before the Court concerned. Therefore, petitioner approached before the Court and raised objections about the maintainability of the 'B' Summary Report filed by the investigating officer. It is found out from the record that petitioner has also preferred an application under Section 173(8) of the Code and prayed that further investigation is required to be carried out by a neutral police officer. After considering and appreciating the material available on record as well as arguments canvassed by learned advocates of the rival parties, the learned Judicial Magistrate First Class, Palsana thought it fit to issue process against the accused under Section 204 Page 10 of 15 Downloaded on : Thu Apr 25 20:30:51 IST 2024 NEUTRAL CITATION R/SCR.A/2377/2018 ORDER DATED: 18/04/2024 undefined of the Code for the offence punishable under Sections 406 and 114 of the IPC and by passing the said order, the learned JMFC rejected the 'B' Summary Report submitted by the investigating officer concerned.
11. It is found out from the record that being aggrieved by and dissatisfied with the said order passed by the Judicial Magistrate First Class, Palsana, the petitioner preferred Criminal Revision Application before the Revisional Courts. However, the said revision application came to be rejected by the Revisional Court by observing that the judgment and order passed by the learned Magistrate is just, fair and reasonable and based upon the sound principle of law and there is no perversity found in the operative part of the order. Hence, the petitioner has preferred present petition challenging the impugned orders passed by the learned Courts below and also with a prayer for further investigation under Section 173(8) of the Code.
12. It is found out from the record that at the time of institution of the complaint, the complainant has come with a specific case that accused persons have committed number of offences. After considering and verifying all the materials available on record, the learned Judge concerned thought it fit to pass an order under Section 156(3) of the Code by directing the police officer to register complaint of the complainant but at that relevant point of time a Page 11 of 15 Downloaded on : Thu Apr 25 20:30:51 IST 2024 NEUTRAL CITATION R/SCR.A/2377/2018 ORDER DATED: 18/04/2024 undefined specific rider was put by the learned Judge by specifically stating that FIR is to be filed against the accused persons only for the offence punishable under Sections 406 of the Indian Penal Code and on the strength of the said order, FIR has been filed against the accused persons. Thereafter, 'B' Summary Report came to be filed by the investigating officer which was challenged by the complainant by way of preferring protest petition and ultimately report of the investigating officer was rejected but the prayer of the complainant to carry out further investigation under Section 173(8) of the Code has not been entertained. The record clearly goes on to show that at the first instance when the order was passed under Section 156(3) of the Code by the learned Judge concerned, the direction was issued to the concerned police officer to register the FIR only for the offence punishable under Section 406 of the IPC and said order has not been challenged by the complainant before any higher forum and said order attains finality. Thus, on the above premise, when 'B' Summary Report was filed by the investigating officer and when the complainant has raised his objections against that report, the learned Judge concerned has, after considering, scrutinizing and appreciating all the materials available on record, thought it fit to issue process against the accused persons under Section 204 of the Code for the offence punishable under Sections 406 and 114 of the IPC, in the opinion of this Court, the learned Judge concerned has not Page 12 of 15 Downloaded on : Thu Apr 25 20:30:51 IST 2024 NEUTRAL CITATION R/SCR.A/2377/2018 ORDER DATED: 18/04/2024 undefined committed any error which warrants any interference by the learned Revisonal Court. Thus, in the opinion of this Court, there is no error apparent on the face of the record and the judgments and orders passed by both the learned Courts are just, fair and reasonable which does not warrant any interference by this Court.
13. In D. N. Banerji Vs. P. R. Mukherjee, reported in 1953 SC 58 the Hon'ble Apex Court held;
"Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under articles 226 and 227 of the Constitution to interfere."
14. A Constitution Bench of the Hon'ble Apex Court examined the scope of Article 227 of the Constitution in Waryam Singh and another Vs. Amarnath and another , reported in AIR 1954 SC 215 and made the following observations;
"This power of superintendence conferred by article 227 is, as pointed out by Harries, C.J. in Dalmia Jain Airways Ltd. Vs. Sukumar Mukherjee AIR 1951 Cal. 193, to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors".
15. For interference under Article 227, the concurrent finding of facts recorded by the two courts below should be found to be perverse or Page 13 of 15 Downloaded on : Thu Apr 25 20:30:51 IST 2024 NEUTRAL CITATION R/SCR.A/2377/2018 ORDER DATED: 18/04/2024 undefined patently erroneous and de hors the factual and legal position on record. (See: Nibaran Chandra Bag Vs. Mahendra Nath Ghughu, AIR 1963 SC 1895; Rukmanand Bairoliya Vs. the State of Bihar & ors., AIR 1971 SC 746; Gujarat Steel Tubes Ltd. Vs. Gujarat Steel Tubes Mazdoor Sabha & ors., AIR 1980 SC 1896; Laxmikant R. Bhojwani Vs. Pratapsing Mohansingh Singh Pardeshi, (1995) 6 SCC 576; Reliance Industries Ltd. Vs. Pravinbhai Jasbhai Patel & ors., (1997) 7 SCC 300; M/ s. Pepsi Food Ltd. & Anr. Vs. Sub-Judicial Magistrate & ors., (1998) 5 SCC 749; and Virendra Kashinath Ravat & ors. Vs. Vinayak N. Joshi & ors. (1999) 1 SCC
47).
16. It is well settled that power under Article 227 is of the judicial superintendence which cannot be used to up-set conclusions of facts, howsoever erroneous those may be, unless such conclusions are so perverse or so unreasonable that no Court could ever have reached them. (See: Rena Drego Vs. Lalchand Soni & ors., (1998) 3 SCC 341; Chandra Bhushan Vs. Beni Prasad & ors., (1999) 1 SCC 70; Savitrabai Bhausaheb Kevate & ors. Vs. Raichand Dhanraj Lunja, (1999) 2 SCC 171; and Savita Chemical (P) Ltd. Vs. Dyes & Chemical Workers' Union & Anr.,(1999) 2 SCC
143).
17. In Mohan Amba Prasad Agnihotri Vs. Bhaskar Balwant Aheer, reported in AIR 2000 SC 931, the Hon'ble Supreme Court held that jurisdiction of High Page 14 of 15 Downloaded on : Thu Apr 25 20:30:51 IST 2024 NEUTRAL CITATION R/SCR.A/2377/2018 ORDER DATED: 18/04/2024 undefined Court under Article 227 of the Constitution is not appealable but supervisory. Therefore, it cannot interfere with the findings of fact recorded by Courts below unless there is no evidence to support findings or the findings are totally perverse.
18. In Commandant, 22nd Battalion, CRPF and others Vs. Surinder Kumar, reported in (2011) 10 SCC 244, the Hon'ble Apex Court after referring to its earlier decision in Union of India Vs. R.K. Sharma, (2001) 9 SCC 592 observed that only in an extreme case, where on the face of it there is perversity or irrationality, there can be judicial review under Articles 226 or 227.
19. In the backdrop of the aforesaid discussion, I do not find any reason to interfere with the impugned orders passed by both the learned Courts and the claim of the original complainant, therefore, cannot be accepted. The present petition, lacks merit and hence, is hereby rejected. Notice is discharged.
(DIVYESH A. JOSHI,J) LAVKUMAR J JANI Page 15 of 15 Downloaded on : Thu Apr 25 20:30:51 IST 2024