Gujarat High Court
Johraben D/O Isap Vali Abhram Limdivala ... vs State Of Gujarat & on 18 January, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/221/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 221 of 2016
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JOHRABEN D/O ISAP VALI ABHRAM LIMDIVALA AND W/O....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR VAIBHAV N SHETH, ADVOCATE for the Applicant(s) No. 1
MR. PATEL, ADDL. PUBLIC PROSECUTOR for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 18/01/2016
ORAL ORDER
1. Rule. Mr. Patel, the learned APP, waives service of notice of rule for and on behalf of the respondents.
2. By this application under Article 227 of the Constitution of India, the petitioner-original complainant- has prayed for the following reliefs;
"(A) This Hon'ble Court may kindly be pleased to admit and allow the present petition.
(B) This Hon'ble Court may kindly be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction thereby quashing and setting aside the impugned order dated 01.05.2014 passed in Criminal Inquiry No.11 of 2014 by the court of learned Judicial Magistrate, First Class, Vagra, Bharuch under section 210 of the Code of Criminal Procedure, 1973 whereby the Criminal Inquiry No.11 of 2014 is put in abeyance and the report of Vagra Police Page 1 of 9 HC-NIC Page 1 of 9 Created On Wed Jan 20 01:26:14 IST 2016 R/SCR.A/221/2016 ORDER Station is called for to be submitted within 30 days pertaining to investigation done by it and further quash the report dated 31.05.2014 submitted by police whereby the inquiry by police is also put in abeyance and consequently, direct the Judicial Magistrate, First Class, Vagra, Bharuch to proceed ahead with Criminal Inquiry No.11/2014 in the interest of justice.
(C ) This Hon'ble Court may kindly be pleased to issue appropriate writ, order or direction thereby directing the Vagra Police Station, Vagra, Bharuch to register the Local Application No.56 of 2014 registered in pursuance to written complaint of the petitioner as 'FIR' and consequently investigate the same in accordance with law in the interest of justice.
(D) Pending admission, hearing and final disposal of the present petition, this Hon'ble Court may kindy be pleased to direct the court of Judicial Magistrate, Vagra, Bharuch to proceed ahead with the proceeding of Criminal Inquiry No.11/2014 pending before it which is put in abeyance in the interest of justice.
(E) Any order/s which may be deemed fit and expedient in the interest of justice may kindly be passed by this Hon'ble Court."
3. It appears that before lodging a private complaint in the court of the learned Judicial Magistrate, Vagra, District:
Bharuch, the applicant herein had preferred an application before the concerned police station with respect to the very same subject matter with a prayer to register the first information report. It also appears that the first information report was not registered. In the meantime, the applicant thought fit to file a private complaint. When the private complaint was taken up for hearing, the learned Magistrate took notice of the fact that the police is looking into the matter which is the subject matter of the private complaint, and in such circumstances, thought fit to stay the proceedings under section 210, i.e., the proceedings of the private complaint and Page 2 of 9 HC-NIC Page 2 of 9 Created On Wed Jan 20 01:26:14 IST 2016 R/SCR.A/221/2016 ORDER called for the report of the police. It appears that the police filed a report which is at Annexure-C to this petition, page-20. It is not clear whether the learned Magistrate has taken note of the report filed by the police or not. The question before me is whether the learned Magistrate was justified in staying the proceedings of the private complaint under section 210 of the Code of Criminal Procedure, 1973 for the purpose of looking into the report of the police.
4. Mr. Sheth, the learned advocate appearing for the applicant, has invited my attention to a reported decision of this Court rendered by a learned Single Judge in the case of Rehana S. Kadri vs. State of Gujarat & Ors., 2012 Criminal Law Journal, 2947. The learned Single Judge made the following observations.
"[7.2] A bare reading of the above provisions make it clear that during the inquiry or trial relating to a complaint case, if it is brought to the notice of the Magistrate that an investigation by the police is in progress in respect of the same offence, he shall stay the proceedings of the complaint case and call for report on the matter of the police officer conducting the investigation. As observed by the Hon'ble Supreme Court in the case of Sankaran Moitra (Supra), the object of enacting Section 210 of the CrPC is threefold.
i. it is intended to ensure that private complaints do not interfere with the course of justice; ii. it prevents harassment to the accused twice; and iii.it obviates anomalies which might arise from taking cognizance of the same offence more than once.
In the said decision, the Hon'ble Supreme Court also considered the observations made by the Joint Committee of the Parliament in para 78 of the said judgment which reads as under:
78. The Joint Committee of Parliament Page 3 of 9 HC-NIC Page 3 of 9 Created On Wed Jan 20 01:26:14 IST 2016 R/SCR.A/221/2016 ORDER observed:
"It has been brought to the notice of the Committee that sometimes when serious case is under investigation by the police, some of the persons file complaint and quickly get an order of acquittal either by cancellation or otherwise. Thereupon the investigation of the case becomes infructuous leading to miscarriage of justice in some cases. To avoid this, the Committee has provided that where a complaint is filed and the Magistrate has information that the police is also investigating the same offence, the Magistrate shall stay the complaint case. If the police report (under Section 173) is received in the case, the Magistrate should try together the complaint case and the case arising out of the police report. But if no such case is received the Magistrate would be free to dispose of the complaint case. This new provision is intended to secure that private complainants do not interfere with the course of justice."
(emphasis supplied) [7.3] As observed by the Hon'ble Supreme Court in the said decision, before Section 210 CrPC can be invoked, following conditions must be satisfied. i. There must be a complaint pending for inquiry or trial;
ii. Investigation by the police must be in progress in relation to the same offence;
iii.A report must have been made by the police officer under Section 173; and iv.The magistrate must have taken cognizance of an offence against a person who is accused in the complaint case.
Therefore, before Section 210 is invoked by the learned Magistrate, there must be an investigation by the police in progress in relation to the same offence.
[7.4] As observed by the Hon'ble Supreme Court in the case of Shashikant v. Central Bureau of Investigation & Ors. reported in (2007) 1 SCC 630, "registration of a case is a sine qua non for starting investigation". Therefore, before any investigation is conducted by the police officer with Page 4 of 9 HC-NIC Page 4 of 9 Created On Wed Jan 20 01:26:14 IST 2016 R/SCR.A/221/2016 ORDER respect to any offence, it must be after the said complaint is registered as FIR as provided under Section 154 of the CrPC. There cannot be any "investigation"
by a police officer of an offence unless accusation/complaint is registered as FIR. Considering the Chapter XII of the Criminal Procedure Code, 1973 before any investigation is conducted by any police officer, with respect to any information relating to the commission of cognizable offence, it must be reduced in writing by him which is known as FIR and a copy of the said information is required to be send to the concerned Magistrate having jurisdiction. After the said information is registered as FIR, the concerned police officer shall have the power to investigate the said cognizable offences without the order of a Magistrate and 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. Therefore, only in a case where any "investigation" is in progress by the police after registering the information as FIR and in relation with the same offence, the complaint under Section 190 of the CrPC is pending for inquiry or trial before the concerned Magistrate, in that case, only the learned Magistrate can invoke the provisions under section 210 of the CrPC and he has to wait till a report on the matter is received from the police officer conducting the investigation. At this stage it is required to be noted that a report by the concerned police officer after conducting the investigation would be as provided under Section 173/169 of the CrPC and a police report after investigation as provided under Section 173/169 of the CrPC would be only after the information/complaint with respect to any offence is registered by the concerned police officer as FIR as provided under Section 154 of the CrPC and investigation with respect to same is carried out. Any inquiry by any police officer with respect to any offence cannot be said to be "investigation" and any report on any inquiry by police officer without registering the complaint as FIR cannot be said to be a police report as provided under Section 173/169 of the CrPC. Therefore, if any inquiry is going on by any police officer with respect to any complaint or offence without registering the same as FIR, the Magistrate cannot invoke the powers under Section 210 of the CrPC. Therefore, only in a case where it is made to appear to the Page 5 of 9 HC-NIC Page 5 of 9 Created On Wed Jan 20 01:26:14 IST 2016 R/SCR.A/221/2016 ORDER Magistrate in a complaint case (complaint under Section 190 CrPC) during the course of inquiry or trial held by him with respect to the said complaint, that an investigation by the police is in progress in relation to the offence which is a subject matter of inquiry or trial held by him, after registering the complaint as FIR under Section 154 of the CrPC or any investigation carried out by the concerned police officer pursuant to the order passed by the learned Magistrate for police investigation under Section 156(3) of the CrPC in those cases only, the Magistrate is required to stay the inquiry/trial held by him and has to call for police report on the matter from police officer conducting the investigation which would be under Section 173 of the CrPC and thereafter has to proceed further in accordance with Section 210 of the CrPC.
[7.5] In the present case, as stated herein above, there is no investigation by the police officer with respect to the offence in progress in relation to the same offence, which was the subject matter of inquiry before the learned Magistrate, after registering the information/complaint dated 18.11.2009 as FIR by the concerned police officer or the investigation being carried out by the concerned police officer pursuant to the order passed by the learned Magistrate for police investigation under Section 156(3) of the CrPC and only some inquiry is being conducted by the concerned police officer and therefore, the learned Magistrate is not justified in invoking powers under Section 210 of the CrPC and to stay further inquiry with respect to the Criminal Inquiry Case No.4/2010. As there was no investigation by the concerned police officer after registering the information dated 18.11.2009 as FIR, there is no question of learned Magistrate calling for the police report on the matter from the police officer conducting investigation as any report on inquiry (not being the investigation of an offence after registering the same as FIR) cannot be said to be police report as contemplated under Section 173/169 of the CrPC. Therefore, the learned Magistrate has materially erred in invoking Section 210 of the CrPC and staying the further inquiry by him and thereafter not vacating the said order.
[7.6] "Investigation" has been defined in sub-section
(h) of section 2 of the CrPC. According to this definition, "investigation" includes all the proceedings under the Page 6 of 9 HC-NIC Page 6 of 9 Created On Wed Jan 20 01:26:14 IST 2016 R/SCR.A/221/2016 ORDER Code for collection of evidence as conducted by a police officer or by any person (other than a Magistrate), who is authorized by a Magistrate in this behalf. So investigation is a systematic, minute and thorough attempt to learn the facts about something complex or hidden; it if often formal and final. Under the Code of Criminal Procedure, "investigation" consists of the following steps:
i. proceeding to the spot ii. ascertainment of the facts and circumstances of the case iii.discovery and arrest of the suspected offender iv.collection of evidence relating to the commission of the offence which may consist of the examination of various persons (including the accused) and the reduction of their statement into writing, if the officer thinks fit; search of places and seizure of things considered necessary for investigation and for production at the trial; and v. formation of the opinion as to whether on the materials collected there is a case to place the accused before the Magistrate for trial and, if so, taking necessary steps for the same by filing a charge sheet u/S.173, CrPC. Thus, the purpose of investigation is to find out whether materials exist to place the accused before the Magistrate for trial.
[7.7] Now, so far as the submissions made on behalf of the learned APP with respect to holding the preliminary inquiry before registering the complaint as FIR is concerned, this Court is not required to consider the aforesaid aspect as that is not the controversy in the present petition. The question is whether pending any inquiry/preliminary inquiry before registering the complaint as FIR, the learned Magistrate can invoke powers under section 210 of the CrPC or not?
1. [7.8] While conducting any inquiry by the concerned police officer with respect to any complaint/offence without registering the same as FIR, the concerned police officer has no such powers of arrest without search of places and seizure of the things and/or collection of evidence relating to the commission of offence. Even while conducting such an inquiry, at the most he can form an opinion whether the complaint is required to be registered as FIR or not and such an opinion on inquiry can be said to be forming an opinion Page 7 of 9 HC-NIC Page 7 of 9 Created On Wed Jan 20 01:26:14 IST 2016 R/SCR.A/221/2016 ORDER as to whether on the materials collected during such inquiry, there is a case to place the accused before the Magistrate for trial and it cannot be said that the said inquiry can be said to be taken necessary steps by filing a charge-sheet under Section 173 of the CrPC. Such inquiry/preliminary inquiry does not entails submission of any report under Section 173 of the Code or forwarding accused before a Magistrate for trial. Therefore, the inquiry into the incident conducted by the police officer does not amount to investigation as contemplated under section 2(h) of the CrPC and therefore, the same cannot be said to be an investigation carried out by the concerned police officer during which the Magistrate can invoke the powers under Section 210 of the CrPC. Any inquiry and/or preliminary inquiry by any police officer with respect to the incident for which the complaint is pending before the learned Magistrate does not amount to any investigation by the police, and so the present situation do not come within the provisions of Section 210 of the CrPC. In the aforesaid situation, there was no scope for the learned JMFC to stay the proceedings of the complaint case filed by the applicant herein. "
5. In my view, having regard to the position of law explained in the above quoted decision, the learned Magistrate committed an error in passing the impugned order dated 1st May, 2014.
6. In view of the above, this application succeeds and is hereby allowed. The impugned order is hereby quashed. The Magistrate shall proceed further with the private complaint lodged by the applicant herein in accordance with law. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(J.B.PARDIWALA, J.)
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R/SCR.A/221/2016 ORDER
Vahid
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