Gujarat High Court
State Of Gujarat vs Rajanibhai M. Makvana on 8 February, 2022
Author: B.N. Karia
Bench: B.N. Karia
R/CR.RA/552/2021 ORDER DATED: 08/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 552 of 2021
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STATE OF GUJARAT
Versus
RAJANIBHAI M. MAKVANA
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Appearance:
MR HARDIK SONI, APP for the Applicant(s) No. 1
MR ASHISH M DAGLI(2203) for the Respondent(s) No. 7
MR CHINMAY M GANDHI(3979) for the Respondent(s) No. 1,2,3,4,5
MS NIKITA C GANDHI(11570) for the Respondent(s) No. 1,2,3,4,5
MS RUMI M GANDHI(3472) for the Respondent(s) No. 1,2,3,4,5
NOTICE UNSERVED for the Respondent(s) No. 6
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CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
Date : 08/02/2022
ORAL ORDER
1. The present application is filed under Section 397 read with Section 401 of the Code of Criminal Procedure ('the Code' for short) for the purpose of challenging the legality and validity of the order dated 24.08.2020 passed in Criminal Inquiry Case No.227 of 2020 by learned Chief Metropolitan Magistrate, Ahmedabad and simultaneously, has prayed for a relief to modify the direction given by the Trial Court and handover the inquiry as per Section 156(3) of the Code to the concerned police station having jurisdiction.
2. The premise on which, the matter is preferred by the State Authority is that complainant had filed an application before learned Chief Metropolitan Magistrate, Ahmedabad, which was registered as Criminal Inquiry Case No.227 of 2020, with a prayer to register FIR and investigation be ordered as per Section 156(3) of the Code for sending the same for investigation through Page 1 of 19 Downloaded on : Sun Apr 24 12:16:25 IST 2022 R/CR.RA/552/2021 ORDER DATED: 08/02/2022 CID-Crime.
3. The learned Chief Metroplitan Magistrate, Ahmedabad vide order dated 24.08.2020 had directed to register the criminal complaint by CID Crime, Ahmedabad Zone as per Section 156(3) of the Code.
4. It is the case of the petitioner that upon receipt of the said application from the original complainant, without application of mind and in a routine manner, just by a cryptic order, the matter was sent for investigation under Section 156(3) of the Code by directing the Police Superintendent of CID-Crime, Ahmedabad Zone to inquire and submit report within 90 days before the Court and to that effect, an order is passed, as stated above, and it is this order which is challenged by the State authority on multiple grounds which are stated in the lead matter.
5. Following are the grounds which are stated in the lead matter by the petitioner:-
(A) The petitioner humbly submits that the CID Crime is a specialized unit of the serious and complex offences. The complaint filed by the original complainant is not that much serious or complex that the local Police station could not effectively investigate the case. In the case, direction given by the Learned Chief Metropolitan. Magistrate, Ahmedabad to inquire and investigate by avoidable and unwarranted.
(B) The applicants humbly relied upon the judgment passed by the Hon'ble Supreme Court in the case of CBI v/s State of Rajasthan passed on 19.01.2001 in Criminal Appeal no. 1162 of 1998. As per this order the Magistrate empowers to direct the investigation as per Section 156(3) of Criminal Procedure Code to the officer incharge of the police station for any cognizable case for which such Magistrate has jurisdiction, Therefore, power cannot be stretched under the said. Section beyond directing officer incharge of the police station to conduct the investigation A copy of the order of the judgment dated 19.01.2001 passed Page 2 of 19 Downloaded on : Sun Apr 24 12:16:25 IST 2022 R/CR.RA/552/2021 ORDER DATED: 08/02/2022 under Criminal Appeal no 1162 of 1998 is annexed herewith and marked as Annexure-C. (C) The applicant humbly submits that the Learned Chief Metropolitan Magistrate, Ahmedabad within the short span of time, in eleven enquires direction was given to the CID to enquired as per Section 156(3) of Criminal Procedure Code.
(D) This Hon'ble High Court passed a reason order on 24.09.2013 in Special Criminal Appeal no. 1087 of 2013 and observed that "Chief Metropolitan Magistrate, while directing investigation under Section 154(3) of the Criminal Procedure Code, 1973 has (exceeded his jurisdiction by directing investigation by the CID Crime & Rly Additional D.G., So by way of ad-interim relief, further proceedings of Gandhinagar Zone, CID Crime M. Case no. 15 of 2012 are hereby stayed." The copy of the order dated 24.09.2013 passed in the Special Criminal Application no. 1087 of 2013 is annexed herewith and marked as Annexure-D. (E) The similar order was also passed by the Hon'ble Delhi High Court on 13.04.2017 in Criminal Misc. Application no. 666 of 2017 that the Magistrate cannot directed to the CBI to inquired under Section 156(3) of Criminal Procedure Code. A copy of the order passed by Hon'ble Delhi High Court dated 13.04.2017 in) Criminal Misc. Application no. 666 of 2017 is annexed herewith and marked as Annexure-E. (F) The applicant humbly submits that the officer associated with the CID crime are less as their specialized skill required to be utilized in the most sensitive cases which would affect the public at large. Looking to the limited numbers of resources, the matter which otherwise can properly investigated by the local police station ought not to have been allotted directly to the CID office.
(G) The similar order was also passed by Hon'ble High Court on 14.11.2000 in Criminal Revision Application no. 332 of 1993.
This Hon'ble Court had observed in para 5 which is reproduced herein below:
"In view of the discussion made hereinabove impugned order so far as it relates to ordering of investigation to Deputy Commissioner of Police is illegal and the same is required to be set aside and instead of ordering Deputy Commissioner of Police, the investigation is required to be ordered to Police Inspector of Bhaktinagar Police Station, Rajkot."
6. Heard learned advocates for the respective parties.
7. Learned Additional Public Prosecutor appearing on behalf Page 3 of 19 Downloaded on : Sun Apr 24 12:16:25 IST 2022 R/CR.RA/552/2021 ORDER DATED: 08/02/2022 of the petitioner - State has vehemently contended that while exercising the discretion under Section 156(3) of the Code, there must be an application of mind and the matter in a routine manner cannot be sent for investigation under Section 156(3) of the Code and especially, same cannot be sent to CID-Crime, which is a specialized Unit for crime investigation. It is further submitted that a bare reading of the complaint itself is indicating that it is a private dispute which has resulted into a dispute inter-se between the parties and the nature of the offence is not such which requires such kind of specialized agency to investigate. Apart from that, learned APP has vehemently submitted that a bare reading of the order impugned is reflecting no subjective satisfaction nor any reasons are assigned much less even the cogent reasons as to why the matter is sent for investigation under Section 156(3) of the Code and especially, to the CID-Crime which is a specialized investigating agency of the State. Learned APP has drawn the attention of the Court to Section 154 of the Code as well as Section 210(1) and entire Section 156(3) of the Code and in addition thereto Section 200 of the Code as well, and has submitted that a conjoint reading of these provisions would clearly indicate that every matter cannot be sent for investigation in such a routine manner and that too, by the specialized agency.
8. Learned Additional Public Prosecutor has further contended that in what kind of circumstance, the direction is to be issued of such a nature, proposition is laid down by series of decisions not only by Hon'ble the Apex Court but also the orders of this Court as well. By referring to the decisions which are attached to the petition compilations as well as specifically by referring to a decision of the Hon'ble Apex Court reported in (2015) 6 SCC 287 and has submitted that the order impugned Page 4 of 19 Downloaded on : Sun Apr 24 12:16:25 IST 2022 R/CR.RA/552/2021 ORDER DATED: 08/02/2022 not only suffers from vice of non-application of mind but is also without jurisdiction as well. Under the Scheme, it has been pointed out that learned Chief Metropolitan Magistrate is having jurisdiction over not only CID-Crime but also having jurisdiction over Shahibaug Police Station as well and therefore, instead of sending the matter to CID-Crime, even local police ought to have been directed to inquire, if so desire, and there is simultaneously no satisfaction reflecting in the order as to why the local police is not in a position to cope with the inquiry which is sought to be ordered. Therefore, in absence of such satisfaction, the order can be said to be without jurisdiction. Further, by referring to the Criminal Manual and by inviting attention to Chapter-X, which deals with special organizations, few provisions have been brought to the notice of this Court, and especially by referring to Section 462, an attention is invited about the function and working of CID-Crime (Crime Branch) and after referring to these provisions, from Section 459 onwards of Chapter-X, a request is made that from bare perusal of the assertion of the complaint, it does not transpire that there is any justification reflecting in the order directing the CID-Crime to make an inquiry. Therefore, the order is unsustainable, without jurisdiction and thoroughly uncalled for in the facts of the present case.
9. Learned Additional Public Prosecutor has further submitted that even if a case is made out of inquiry under Section 156(3) of the Code, then also, there must be a genuine circumstance warranting for such inquiry. It is not open for learned Magistrate to pass such casual orders. It has been emphatically submitted that in a short span of time, this very learned Chief Metropolitan Magistrate, Ahmedabad has passed such kind of orders, cryptic in nature and such direction has resulted into unnecessary burden on the agency, which is meant Page 5 of 19 Downloaded on : Sun Apr 24 12:16:25 IST 2022 R/CR.RA/552/2021 ORDER DATED: 08/02/2022 for investigation of a specialized crime. This being the position, the order under challenge is absolutely unsustainable, non- speaking order and is passed without assigning any cogent reasons and as such, has requested that present Revision Applications be allowed.
10. As against the aforesaid submissions, Mr.Ashish Dagli, learned advocate appearing on behalf of respondent No.7 - original complainant has vehemently opposed the petition by contending that a serious crime is committed by the respondents accused and the transactions are of such a nature where this specialized agency, i.e. CID-Crime, is able to investigate the matter properly. It has been submitted that simply because no detailed reasons are assigned, same would not construe that the order is not sustainable in the eye of law. In fact, while exercising the discretion, learned Metropolitan Magistrate has acted within the bounds of his authority and has passed a just order looking to the nature of the complaint. It is further submitted that looking to the reliefs which are prayed for in the present Revision Application, it seems that basically, the State Authority is not against the inquiry ordered under Section 156(3) of the Code but learned Magistrate has sent the matter for investigation to CID-Crimes. It has been submitted that here is a case in which the accused persons have not submitted any challenge to the impugned orders and surprisingly, it is the State authority which has come forward to challenge the same. Therefore, no challenge be accepted at the behest of the State authority. Accordingly, the revision application deserves to be dismissed. It is further submitted that CID-Crime is an agency coming within the jurisdiction of learned Chief Metropolitan Magistrate and therefore, no fault can be found if such agency is entrusted the work of investigation. It is further submitted that Page 6 of 19 Downloaded on : Sun Apr 24 12:16:25 IST 2022 R/CR.RA/552/2021 ORDER DATED: 08/02/2022 no-doubt, in addition to the CID-Crime, even Shahibaug Police Station is also under control of learned Chief Metropolitan Magistrate, Ahmedabad. However, be that as it may, the State has not assigned any cogent reasons as to why it is aggrieved by such order of inquiry. Simply because there might be a less number of personnel in the department, that would not be a ground to challenge the order. The State has not projected any such exceptional circumstance, whereby the order is not sustainable and as such, in absence of any germane ground, it is not open for the State to assail the order. It is further submitted that it is for learned Magistrate to decide as to in which circumstance and by which agency, the investigation or crime is to be investigated and therefore, such discretion having been exercised properly, there is hardly any ground made out by the State to challenge the order. It is further submitted that there is no patent illegality or error committed by learned Magistrate while passing the orders impugned and therefore, in absence of any such patent defect, revisional jurisdiction under Section 397 read with Section 401 of the Code be exercised looking to the limited scope of the same. According to Mr. Dagli, it is surprising as to why the State authority instead of making an investigation and filing appropriate report is feeling shy about complying with the order and as such, the order under challenge is not such which may call for any interference by this Hon'ble Court.
11. Learned advocate Mr.Chinmay Gandhi appearing on behalf of the respondent nos.1 to 5 - accused has submitted that this complaint has been filed only with a view to see that pressure be built upon the accused persons to succumb to their demand, otherwise there are complaints inter-se pending for the offenses punishable under the IPC. A method of pressurizing the accused Page 7 of 19 Downloaded on : Sun Apr 24 12:16:25 IST 2022 R/CR.RA/552/2021 ORDER DATED: 08/02/2022 is adopted by the complainant and as such, by substantially supporting the case of the State authority, a request is made to set aside the impugned orders. In any case, according to him, the orders reflect non-application of mind at all and as such, on that very count, the orders under challenge deserve to be quashed and set aside.
12. Having heard learned advocates appearing for the parties and having gone through the material on record, prima facie, it appears that the complaint and narration of it is indicating that the dispute is between the members of the society and administrator.
13. To test the validity of the orders impugned, few provisions and the observations made by the Hon'ble Apex Court in the decision in the case of Priyanka Srivastava Vs. State of Uttar Pradesh, reported in 2015 (0) AIJEL-SC 56373 are to be kept in mind, which decision has analyzed the entire Scheme of the relevant provisions and as such, the relevant observations contained in para 16 to 22, 26, 27 and 32 are reproduced hereunder:-
16. We have narrated the facts in detail as the present case, as we find, exemplifies in enormous magnitude to take recourse to Section 156(3) Cr.P.C., as if, it is a routine procedure. That apart, the proceedings initiated and the action taken by the authorities under the SARFAESI Act are assailable under the said Act before the higher forum and if, a borrower is allowed to take recourse to criminal law in the manner it has been taken it, needs no special emphasis to state, has the inherent potentiality to affect the marrows of economic health of the nation. It is clearly noticeable that the statutory remedies have cleverly been bypassed and prosecution route has been undertaken for instilling fear amongst the individual authorities compelling them to concede to the request for one time settlement which the financial institution possibly might not have acceded.
That apart, despite agreeing for withdrawal of the complaint, no steps were taken in that regard at least to show the bonafide. On the contrary, there is a contest with a perverse sadistic Page 8 of 19 Downloaded on : Sun Apr 24 12:16:25 IST 2022 R/CR.RA/552/2021 ORDER DATED: 08/02/2022 attitude. Whether the complainant could have withdrawn the prosecution or not, is another matter. Fact remains, no efforts were made.
(emphasis supplied)
17. The learned Magistrate, as we find, while exercising the power under Section 156(3) Cr.P.C. has narrated the allegations and, thereafter, without any application of mind, has passed an order to register an FIR for the offences mentioned in the application. The duty cast on the learned Magistrate, while exercising power under Section 156(3) Cr.P.C., cannot be marginalized. To understand the real purport of the same, we think it apt to reproduce the said provision:
"156. Police officer's power to investigate congnizable case.-
(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was no empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned."
18. Dealing with the nature of power exercised by the Magistrate under Section 156(3) of the CrPC, a three-Judge Bench in Devarapalli Lakshminarayana Reddy and others v. V. Narayana Reddy and others[2], had to express thus:
"It may be noted further that an order made under sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or chargesheet under Section 173."
19. In Anil Kumar v. M.K. Aiyappa[3], the two-Judge Bench had to say this:
"The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed [(2008) 5 SCC 668] examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a Page 9 of 19 Downloaded on : Sun Apr 24 12:16:25 IST 2022 R/CR.RA/552/2021 ORDER DATED: 08/02/2022 complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) CrPC, should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation."
(emphasis supplied)
20. In Dilawar Singh v. State of Delhi[4], this Court ruled thus:
"18. ...11. The clear position therefore is that any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. 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 commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the 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 of the Code only thereafter."
21. In CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd.[5], the Court while dealing with the power of Magistrate taking cognizance of the offences, has opined that having considered the complaint, the Magistrate may consider it appropriate to send the complaint to the police for investigation under Section 156(3) of the Code of Criminal Procedure.
And again:
"When a Magistrate receives a complaint he is not bound to take cognizance if the facts alleged in the complaint disclose the commission of an offence. The Magistrate has discretion in the matter. If on a reading of the complaint, he finds that the Page 10 of 19 Downloaded on : Sun Apr 24 12:16:25 IST 2022 R/CR.RA/552/2021 ORDER DATED: 08/02/2022 allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under [pic]Section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence itself. As said earlier, in the case of a complaint regarding the commission of cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). However, if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to revert back to the pre- cognizance stage and avail of Section 156(3)."
22. Recently, in Ramdev Food Products Private Limited v. State of Gujarat[6], while dealing with the exercise of power under Section 156(3) CrPC by the learned Magistrate, a three-Judge Bench has held that:
".... the direction under Section 156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone instance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued. Cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate has yet to determine "existence of sufficient ground to proceed."
(emphasis supplied)
26. At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same.
(emphasis supplied)
27. In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make Page 11 of 19 Downloaded on : Sun Apr 24 12:16:25 IST 2022 R/CR.RA/552/2021 ORDER DATED: 08/02/2022 the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.
(emphasis supplied)
32. A copy of the order passed by us be sent to the learned Chief Justices of all the High Courts by the Registry of this Court so that the High Courts would circulate the same amongst the learned Sessions Judges who, in turn, shall circulate it among the learned Magistrates so that they can remain more vigilant and diligent while exercising the power under Section 156(3) Cr.P.C.
(emphasis supplied)
14. It is observed by the Court that this decision has also taken note of the decision which has been relied upon by the State authority in the criminal proceedings, i.e. case of Ramdev Food Products Pvt. Ltd. Vs. State of Gujarat reported in (2015)6 SCC 439, and as such, this being later in point of time, Page 12 of 19 Downloaded on : Sun Apr 24 12:16:25 IST 2022 R/CR.RA/552/2021 ORDER DATED: 08/02/2022 the Court has taken the observations from the aforesaid decision.
15. Additionally, learned Additional Public Prosecutor has relied upon the decision in the case of Ramdev Food Products Pvt. Ltd. (supra), in which, para 20 is indicating clearly that direction by the Magistrate for investigation under Section 156(3) cannot be given mechanically and for that purpose, Hon'ble the Apex Court has already kept in mind the previous decision reported in (2013)10 SCC 705, as stated above. Since this very decision of Ramdev Food Products (supra) is kept in mind by the Hon'ble Apex Court in the aforesaid decision in the case of Priyanka Srivastava (supra), the repeated observations are not produced hereunder, but in any case, the proposition which is emerging is that the direction under Section 156(3) of the Code is to be issued only after application of mind by Magistrate and cannot be in a mechanical and in a routine manner. Having kept in mind the aforesaid proposition laid down by Hon'ble the Apex Court in the aforesaid two decisions, a bare reading of the impugned order is clearly indicating that not only there is no subjective satisfaction, but even the reasons are also not assigned as to why, the inquiry is to be ordered under Section 156(3) of the Code and apart from that, there is no conclusion or satisfaction as to why same is sent to CID-Crime, Ahmedabad Zone and local police may not inquire properly. By referring to some decision in the case of Jasvantbhai Somabhai Patel Vs. Amrutbhai Kandas Patel and others, there is no other reflection of any nature in impugned orders, which would indicate any application of mind. Hon'ble the Apex Court has time and again propounded that every exercise of discretion or jurisdiction must be backed by not only application of mind but also by valid reasons. Bare reading of the impugned orders Page 13 of 19 Downloaded on : Sun Apr 24 12:16:25 IST 2022 R/CR.RA/552/2021 ORDER DATED: 08/02/2022 reflects absolute non-speaking orders, reflects non-application of mind and as such, on this count only, the Court is satisfied that same deserve to be quashed and set aside.
16. Apart from the above, learned Additional Public Prosecutor has pointed out that this very learned Chief Metropolitan Magistrate, in a brief period, has sent some inquiries in a routine manner, like this, and has practically put everybody to prejudice. Now, further to substantiate this whether is it open to learned Magistrate to pass such orders in a mechanical manner and that too for inquiry by the specialized agency, like CID- Crime, an attention of this Court is drawn to the Criminal Manual, particularly, Chapter-X. Chapter-X of the Criminal Manual deals with special organization. Section-I is regarding Criminal Investigation Department (CID). In addition to the other provisions of this Chapter, relevant provision is Section 461, which postulates function of CID (Intelligence Branch), which reads as under:-
461. Functions of the C. I. D. (Intelligence Branch)-The functions of this branch are:
(a) The collection and collation of information regarding political, industrial and other similar developments or movements in the State,
(b) Verification of character and antecedents, protection and security of V1Ps, watch over anti-national activities, movements of foreigners and all matters pertaining to internal security, etc.;
(c) Collection of intelligence regarding all types of communal activities will be an important work of this branch:
(d) To keep the Government informed of all the above activities from time to time.
17. Further, Section 462 is dealing with and prescribing function and working of CID (Crime Branch). Since the provision Page 14 of 19 Downloaded on : Sun Apr 24 12:16:25 IST 2022 R/CR.RA/552/2021 ORDER DATED: 08/02/2022 is also relevant to the issue on hand, the Court deems it proper to reproduce the same hereunder:-
462.Functions and working of the C.L.D. (Crime Branch)-
(1) The functions of this branch are:-
(a) The control of specialised of professional crime througout the
State, and
(b) The investigation of specialised crime when of sufficient
importance, and of special important cases.
(2) This branch will concern itself with the collection, collation and
dissemination of information relating to crime and criminals in accordance with such orders as the Deputy Inspector-General, C.I.D. (Crane and Railways) may issue from time to time. All enquiries and orders issued in this connection will be promptly and carefully attended to by Superintendent.
(3) This branch is responsible for the publication of Parts 1 and 11 (Crime) of the Gujarat Police Gazette after compiling them on information received from the districts or collected from the Police Gazettes of other States, and also of a separate supplement reproducing notifications of Government regarding prescribed literature.
(4)(a)This branch prepares crime records in inter- State and inter-
district thieves. burglars, dacoits, robbers, cheats, poisoners, forgers and coiners Of these, the crime records of cheats, poisoners and coiners are maintained upto-date by the preparation of addenda giving details of their latest activities and convictions, which are published in the Gujarat Police Gazette. In the case of all the classes of criminals it is necessary to prepare crime records of all and also to maintain all records upto-date for the purpose of Data Processing Machines.
(b) Crime records of active professional criminals whose activities are confined to their districts are prepared and maintained by the Superintendents of Police concerned and copies thereof are supplied to this branch for record. The serial numbers of such district crime records are noted on the finger print slip of the individual on the record of the Finger Print Bureau so that on receipt of intimation regarding his arrest, his antecedents, includ ing previous convictions are supplied by this branch to the district in which he is arrested. Similarly, records of not convicted and strongly suspected criminals will be maintained by the Finger Print Bureau and intimation given as shown above.
Page 15 of 19 Downloaded on : Sun Apr 24 12:16:25 IST 2022 R/CR.RA/552/2021 ORDER DATED: 08/02/2022
(5) The branch makes its business to study carefully the district
crime reviews and the weekly diaries of Sub-Divisional Police Officers This enables the branch to keep in touch with serious organised crime and gang crime in districts, with a view to take up, if necessary. the investigation thereof or to collate information of such crime and disseminate it to the districts, co- ordination between which is called for.
(6) The branch also maintains crime charts, graphs and maps showing by months the variations of the more important forms of crime in the State (side Rule 249) (7) The branch maintains a register of forged currency notes that have come to notice in the Districts and on Railways in the State and takes up, whenever necessary, enquiries about their appearance in consultation with the Director of Intelligence Bureau attached to the Ministry of Home Affairs of the Government of India.
18. From the aforesaid provisions, prima facie, it seems that this CID (Crime Branch) is meant for investigation of specialized crime when of sufficient importance and of special important cases. Whether this peculiar case on hand is a specialized crime or of sufficient importance is required to be gone into by the concerned Magistrate and without arriving at such satisfaction, in a routine manner like this, no order of inquiry to be sent under Section 156(3) of the Code. The orders impugned are completely silent on such circumstance and as such, in absence of any such satisfaction, it is not open for learned Magistrate to send for inquiry under Section 156(3) of the Code in a routine manner and as such, the very exercise of discretion in the background of the present facts is uncalled for.
19. Learned Additional Public Prosecutor has justifiably drawn the attention of this Court to the decision of Hon'ble the Apex Court and additionally, the decisions which are attached to the petition compilation. These decisions if to be looked into, clearly suggest that the order passed by learned Chief Metropolitan Magistrate is unsustainable, which deserves to be quashed in Page 16 of 19 Downloaded on : Sun Apr 24 12:16:25 IST 2022 R/CR.RA/552/2021 ORDER DATED: 08/02/2022 the interest of justice. Even the Coordinate Bench of this Court has also taken note of such circumstance in Special Criminal Application No.1087 of 2013 while passing the order on 24.9.2013, as attached to the petition compilations, and as such, from the overall consideration of the aforesaid material on record and the proposition of law laid down by Hon'ble the Apex Court, as indicated above, this Court is of the clear opinion that the orders passed by learned Magistrate are unsustainable and same deserve to be quashed and set aside.
20. The Court while arriving at this conclusion is also well assisted by one of the decisions of Hon'ble Apex Court in the case of State of Orissa Vs. Dhaniram Luhar reported in (2004)5 SCC 568, wherein it has been suggested that if the reasons are not assigned, exercise of discretion deserves to be quashed. Following are the observations made by Hon'ble the Apex Court in para 7, 8 and 9:-
"7. Reason is the heartbeat of every conclusion, and without the same it becomes lifeless. (See Raj Kishore Jha v. State of Bihar).
8. Even in respect of administrative orders Lord Denning M.R. in Breen v.
Amalgamated Engineering Union (1971 (1) All E.R. 1148) observed "The giving of reasons is one of the fundamentals of good administration". In Alexander Machinery (Dudley) Ltd. v. Crabtree (1974 ICR 120)(NIRC) it was observed: "Failure to give reasons amounts to denial of justice". Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at". Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made; in other words, a speaking out. The "inscrutable face of a sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance.
9. The above position was highlighted by us in State of Punjab v. Bhag Page 17 of 19 Downloaded on : Sun Apr 24 12:16:25 IST 2022 R/CR.RA/552/2021 ORDER DATED: 08/02/2022 Singh."
21. Further, in the very recent decision in the case of Krishna Lal Chawla & Ors., v. State of Uttar Pradesh & Anr., reported in (2021) 5 SCC 435, the Hon'ble Supreme Court has observed about the role of lower judiciary in respect of exercise of powers. Para 18 of the said decision based upon the previous decision since, relevant to the issue, the Court deems it proper to reproduce hereunder :-
"18. The aforesaid powers bestowed on the Magistrate have grave repercussions on individual citizens life and liberty. Thus, these powers also confer great responsibility on the shoulders of the Magistrate and must be exercised with great caution, and after suitable judicial application of mind. Observations in a similar vein were made by this Court in Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749:
28. Summoning of an accused in a criminal case is a serious matter.
Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused. (emphasis supplied)."
This Court, thus, clearly emphasised that the power to issue a summoning order is a matter of grave importance, and that the Magistrate must only allow criminal law to take its course after satisfying himself that there is a real case to be made."
22. At this stage, learned advocate Mr.Ahish Dagli has submitted that the scope of revision is limited in view of Section 397 of the Code. But, in the opinion of this Court, the scope is not that much limited by which the Revisional Court can ignore the patent illegality or defect or even error of jurisdiction or perversity, which appears to have been cropped in the present Page 18 of 19 Downloaded on : Sun Apr 24 12:16:25 IST 2022 R/CR.RA/552/2021 ORDER DATED: 08/02/2022 case on hand. The object of the provision is to see that the patent defect or error of jurisdiction is to be set-right and on careful consideration, it appears to this Court that the orders impugned are since not sustainable in view of the aforesaid circumstances, this appears to be a fit case for exercising the revisional jurisdiction and hence keeping in mind fine line of jurisdictional distinction between Section 397 and Section 482 of the Code, the Court is of the considered opinion that the orders impugned are required to be quashed and set aside.
23. Accordingly, this Criminal Revision Application is ALLOWED. Order dated 24.08.2020 passed in Criminal Inquiry Case No.227 of 2020 by learned Chief Metropolitan Magistrate, Ahmedabad is quashed and set aside.
24. However, it is clarified that the present order is passed in aforesaid peculiar background of facts looking at the impugned orders, but will not come in the way of the respondent complainants to take out appropriate course of action permissible in law against the original accused for which the Court has not expressed any opinion.
(B.N. KARIA, J) rakesh/ Page 19 of 19 Downloaded on : Sun Apr 24 12:16:25 IST 2022