Gujarat High Court
Gaurav Amrutbhai Patel vs State Of Gujarat on 28 January, 2025
NEUTRAL CITATION
R/CR.MA/5740/2021 JUDGMENT DATED: 28/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 5740 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
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Approved for Reporting Yes No
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GAURAV AMRUTBHAI PATEL
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR HARSHIT S TOLIA(2708) for the Applicant(s) No. 1
ADVOCATE NOTICE NOT RECD BACK for the Respondent(s) No.
3,4
MR. CR BUDDHADEV(6707) for the Respondent(s) No. 3,4
MS SONAL S TIWARI(10622) for the Respondent(s) No. 2
MR MANAN MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 28/01/2025
ORAL JUDGMENT
1. Rule. Learned APP Mr. Manan Mehta for respondent No.1 - State, learned advocate Ms. Sonal Tiwari for respondent No.2 - original complainant and learned advocate Mr. Buddhadev for respondent Nos. 3 and 4 waive service of notice of Rule.
2. By way of present application, the applicant Page 1 of 27 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 21:17:39 IST 2025 NEUTRAL CITATION R/CR.MA/5740/2021 JUDGMENT DATED: 28/01/2025 undefined seeks to invoke inherent powers of this Court under Section 482 of the Code of Criminal Procedure, 1973 for quashing and setting aside the order dated 15.03.2021 passed by learned 21st Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Surat in application Exh.4 filed in Criminal Enquiry No.26 of 2021 by respondent No.2.
3. Heard learned Senior Advocate Mr. Harshit Tolia for the applicant, learned APP Mr. Manan Mehta for respondent No.1 - State and learned advocate Ms. Sonal Tiwari for respondent No.2 - original complainant.
4. Learned Senior Advocate Mr. Tolia, who appears for the applicant, submits that in fact it is the specific case of the complainant that he has filed one complaint in the form of an application before the Police Commissioner, Surat and Police Inspector, Sarthana Police Station on 28.09.2020 specifically stating that offence of criminal breach of trust and cheating is committed by the accused persons, wherein, he has narrated the entire sequence of events. Pursuant to the aforesaid application, the then Police Inspector of Sarthana Police Station viz. Mr. B. C. Solanki initiated the inquiry and also recorded the statement of the complainant on 15.10.2020. However, said Mr. Solanki came to be transferred and the present applicant took charge of the said police station on 22.10.2020 and thereafter Page 2 of 27 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 21:17:39 IST 2025 NEUTRAL CITATION R/CR.MA/5740/2021 JUDGMENT DATED: 28/01/2025 undefined carried out further inquiry by recording statements of respondent Nos. 2 and 3 also. Learned Senior Advocate Mr. Tolia further submits that after recording the statements of the complainant and so- called accused person, the applicant jumped to the conclusion that, prima facie, it seems that no cognizable offence is committed by the accused persons as alleged by the respondent No.2 - complainant and the dispute between the parties is essentially of civil nature. He further submits that in fact there were certain simple financial transactions between the parties but the allegations levelled by respondent No.2 does not get any support and therefore respondent No.2 was time and again called upon to give the evidences in support of the allegations levelled by the respondent No.2 against the so-called accused persons. However, the respondent No.2 failed to produce any supporting documents. Therefore, a written communication dated 16.12.2020 came to be addressed to the complainant, inter alia, specifically stating that he has to approach before the concerned Civil Court for redressal of the issue involved in the matter. On receipt of the said communication, the complainant approached before the Court of Chief Judicial Magistrate, Surat by filing Criminal Enquiry No.26 of 2021 and reiterated the said facts with a sole intent to register complaint against the accused person under Section 156(3) of the Code. Learned Senior Advocate Mr. Tolia submits that the learned Court Page 3 of 27 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 21:17:39 IST 2025 NEUTRAL CITATION R/CR.MA/5740/2021 JUDGMENT DATED: 28/01/2025 undefined concerned took cognizance and vide order dated 01.03.2021 initiated the proceedings of inquiry under Section 202 of Cr.P.C.
5. Learned Senior Advocate Mr. Tolia further submits that on 01.03.2021 itself, the respondent No.2 filed another application, inter alia, praying to initiate the proceedings under Section 166A of the Indian Penal Code against the applicant alleging that the applicant has violated the directions issued by the Hon'ble Apex Court vide its dictum in the case of Lalita Kumari v. State of U.P., reported in (2014) 2 SCC 1. He further submits that it is the case of the complainant that he has narrated certain sequence of events of incident occurred during the interregnum period and made specific allegations against the applicant specifically stating that he has not scrupulously followed the guidelines and directions issued by the Hon'ble Apex Court in the case of Lalita Kumari (supra) and therefore appropriate prosecution under Section 166A of the IPC is required to be instituted against the applicant. Based upon the said application, the Court concerned passed an order to issue notice against the applicant and called for certain information. Pursuant to which, the applicant appeared before the Court along with the materials. However, the learned Court concerned after appreciating and verifying the materials available on record, passed the impugned order whereby direction came to be issued to the D.C.P., Page 4 of 27 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 21:17:39 IST 2025 NEUTRAL CITATION R/CR.MA/5740/2021 JUDGMENT DATED: 28/01/2025 undefined Surat to register complaint against the applicant under section 154(1) of the Cr.P.C. for the offence punishable under Section 166A of the IPC. The learned Court concerned also directed the D.C.P., Surat to register FIR under Section 154(1) of the Code and to supply one copy of the same to the Court in the matter of private complaint filed by the respondent No.2. The D.C.P., Surat is also directed to submit his report within a period of 60 days. Thus, being aggrieved by and dissatisfied with the said order passed by the learned Trial Court, applicant herein has filed present application.
6. Learned Senior Advocate Mr. Tolia for the applicant submits that in fact at the time when the complaint in the form of an application preferred by the respondent No.2 - original complainant before the Police Commissioner, Surat as well as Police Inspector, Sarthana Police Station on 28.09.2020, the applicant was not working as Police Inspector, Sarthana Police Station. It is the specific case of the respondent No.2 that he has preferred an application on 28.09.2020, which was received by Sarthana Police Station on 06.10.2020 and thereafter the investigation was carried out and statement of the complainant was recorded on 15.10.2020 by the then Police Inspector of Sarthana Police Station viz. Mr. B. C. Solanki. Thereafter, the said Mr. B. C. Solanki was transferred and present applicant has taken charge of the said police station on Page 5 of 27 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 21:17:39 IST 2025 NEUTRAL CITATION R/CR.MA/5740/2021 JUDGMENT DATED: 28/01/2025 undefined 22.10.2020. As soon as applicant came to know about the pendency of the enquiry, he issued notice on 23.11.2020 to respondent No.3 and recorded his statement. Thereafter, on number of occasions, applicant herein had informed the complainant to remain present with supporting documents and materials. However, the respondent No.2 has failed to submit any supporting documents. Therefore, as per the opinion of the applicant, essentially, the dispute between the respondent No.2 and accused persons is of civil nature and for the purpose of recovery of the amount civil litigation is required to be filed by the complainant before the competent Civil Court and ultimately at the end of the day, applicant addressed a letter to the complainant to that effect.
7. Learned Senior Advocate Mr. Tolia further submits that at the time of deciding the issue involved in the case of Lalita Kumari (supra), the Hon'ble Apex Court has given specific guidelines. He has referred to those guidelines and submitted that as per the mandate issued by the Hon'ble Apex Court, the investigating officer concerned has to carry out preliminary inquiry in certain cases viz. (a) matrimonial disputes/family disputes; (b) commercial offences; (c) medical negligence cases; (d) corruption cases and (e) cases where there is abnormal delay/laches in initiating criminal prosecution. Admittedly, considering and appreciating Page 6 of 27 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 21:17:39 IST 2025 NEUTRAL CITATION R/CR.MA/5740/2021 JUDGMENT DATED: 28/01/2025 undefined the facts mentioned in the body of the application, the investigating officer concerned has recorded the statement of the complainant as well as accused persons and come to a definite conclusion that no cognizable offence is made out against the accused persons and dispute essentially is of civil nature and therefore immediately he informed to the complainant by writing a letter. Therefore, by no stretch of imagination it can be held that applicant is directly or indirectly involved in commission of an offence punishable under Section 166A of the IPC.
8. Learned Senior Advocate Mr. Tolia read the said section and forcefully submitted that said section is inserted on 03.02.2013 after occurrence of unfortunate incidents against women. He has read Section 166A and submitted that at the time of insertion of the provision of said Section, legislature has taken care of the fact that certain category of offences against women wherein investigating officer concerned has to register the FIR immediately and if the investigating officer concerned fails to register FIR, in that event, appropriate penal actions are required to be instituted against the said officer. Admittedly, in the instant case the provisions of Section 166A would not be attracted and therefore it can safely be said that applicant has not committed any breach of the statutory provisions.
Page 7 of 27 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 21:17:39 IST 2025NEUTRAL CITATION R/CR.MA/5740/2021 JUDGMENT DATED: 28/01/2025 undefined
9. Learned Senior Advocate Mr. Tolia further submits that at the time of passing the order, the learned Judge has given specific finding/opinion that as per the mandate issued by the Hon'ble Apex Court in the case of Lalita Kumari (supra), the investigating officer concerned has to prepare report within a period of 7 days and he has to inform to the complainant. Admittedly, copy of the compliant in the form of an application is received by the office of Sarthana Police Station on 06.10.2020 and applicant has not prepared a report within a period of 7 days and this fact clearly goes on to show that applicant has blatantly disregarded and flouted the directions issued by the Hon'ble Apex Court in the case of Lalita Kumari. Learned Senior Advocate Mr. Tolia submits that admittedly present applicant has taken charge of the concerned Police Station on 22.10.2020 and said application was received by the concerned Police Station on 06.10.2020 i.e. much before the applicant has taken charge of the said police station. Admittedly, at the time when the said application was received by the concerned Police Station, applicant was not working in the said Police Station and therefore the question of breach of directions issued by the Hon'ble Apex Court in the case of Lalita Kumari (supra) by the applicant does not arise.
10. Learned Senior Advocate Mr. Tolia further submits that the predecessor of the present applicant Page 8 of 27 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 21:17:39 IST 2025 NEUTRAL CITATION R/CR.MA/5740/2021 JUDGMENT DATED: 28/01/2025 undefined has already recorded the statement of the complainant and if this Court would go through the contents of the said statement, in that event, it would be found out that the complainant has narrated entire sequence of events in a very graphical manner by narrating number of entries/transactions took place between the complainant and accused persons and on the strength of the said statement, investigating officer concerned has jumped to the conclusion that prima facie no cognizable offence is made out. Learned Senior Advocate Mr. Tolia further submits that in fact there was money transaction took place between the parties. Therefore, accused was also called upon to record his statement and his statement was recorded. He also brought certain documents to show that monetary transaction took place between the parties and he has already repaid the said amount to the complainant and just to clarify the said situation, time and again, complainant was called upon but reasons best known to him he has not supplied any material to substantiate his claim and in absence of the same, the investigating officer concerned has filed report. He further submits that whatever decision taken by the present applicant can, at the most, be said to be an error of judgment on his part and by no stretch of imagination he can be held liable for penal provision.
11. Learned Senior Advocate Mr. Tolia further submits that so far as the mandate of conclusion of Page 9 of 27 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 21:17:39 IST 2025 NEUTRAL CITATION R/CR.MA/5740/2021 JUDGMENT DATED: 28/01/2025 undefined inquiry within a period of 7 days would not be applicable to the case of the applicant as he was not at all in-charge of the said Police Station at the relevant point of time and he took charge after lapse of period of 7 days.
12. Learned Senior Advocate Mr. Tolia further submits that thereafter the complainant filed private complaint before the learned Court concerned and the learned Magistrate himself has not passed order under Section 204 of the Cr.P.C. and on the contrary learned Magistrate has passed order under Section 202 Cr.P.C. by giving specific direction to the investigating officer concerned to submit a detailed report after recording statement of the witnesses and collecting the material. He further submits that in fact the said order is passed after recording the verification of the complainant. Therefore, the learned Court has already taken cognizance upon the facts of the matter. The record reveals that on the same day after taking cognizance upon the facts of the complaint, an application is preferred by the complainant to initiate action against present applicant and the learned Court concerned passed order subsequently after making thorough inquiry upon the documents placed by the applicant which clearly goes on to show that the Court concerned has taken pre-cognizance under Section 156(3) of the Code. Learned Senior Advocate Mr. Tolia submits that it is settled proposition of law that 156(3) can be invoked Page 10 of 27 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 21:17:39 IST 2025 NEUTRAL CITATION R/CR.MA/5740/2021 JUDGMENT DATED: 28/01/2025 undefined by the Magistrate before he takes cognizance of the offence under Section 190 (1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3). Therefore, the impugned order passed by the learned Trial Court is required to be quashed and set aside.
13. Learned Senior Advocate Mr. Tolia has put reliance upon the following decisions in support of his submissions:
1. Lalita Kumari v. Government of Uttar Pradesh and another, reported in (2014) 2 SCC 1;
2. Rekha Mukherjee v. Ashish Kumar Das, reported in (2004) 1 SCC 483;
3. Haryana Financial Corporation v. Jagdamba Oil Mills, reported in (2002) 3 SCC 496;
4. Dinavahi Lakshmi Kameswari v. State of A.P., reported in (2020) SCC Online AP 600;
5. Devarapally Lakshminarayana Reddy v.
Narayana Reddy, reported in (1976) 3 SCC 252; and
6. Tula Ram v. Kishore Singh, reported in Page 11 of 27 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 21:17:39 IST 2025 NEUTRAL CITATION R/CR.MA/5740/2021 JUDGMENT DATED: 28/01/2025 undefined (1977) 4 SCC 459.
14. Learned APP Mr. Manan Mehta for the respondent - State has submitted that prima facie it seems that under the misconception of fact the said order might have been passed by the learned Trial Court. He submits that admittedly a complaint in the form of an application is given by the complainant to the Police Commissioner, Surat and Police Inspector, Sarthana Police Station on 28.09.2020, which was received by Sarthana Police Station on 06.10.2020. It is an admitted fact that when the said application was received by the Sarthana Police Station on 06.10.2020, applicant was not working in the said police station and he took over the charge on 22.10.2020. As per the mandate of Lalita Kumari (supra), preliminary inquiry is to be conducted within a period of 7 days and the said period of 7 days would be over on 13.10.2020, whereas, the present applicant has taken over the charge of the said police station on 22.10.2020. Therefore, it cannot be said that applicant has deliberately not followed the dictum of the Hon'ble Apex Court and therefore he cannot be held liable for that. Learned APP Mr. Manan Mehta has further submitted that based upon an application given by the complainant - respondent No.2 herein, the court concerned has issued notice to the applicant and therefore applicant had remained present before the Court concerned along with all the materials. He further Page 12 of 27 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 21:17:39 IST 2025 NEUTRAL CITATION R/CR.MA/5740/2021 JUDGMENT DATED: 28/01/2025 undefined submits that during the course of investigation, the investigating officer has recorded the statement of the complainant as well as accused person based on which the applicant has jumped to the conclusion that some monetary transactions took place between the complainant and accused persons and bank statements of the complainant as well as accused were supplied by the parties to the investigating officer which clearly goes on to show that during the interregnum period the complainant as well as accused have entered into some transactions and accused has made specific statement that complainant had invested amount in the online gaming scheme with a sole intent to earn huge volume of profit but he could not get profit from the said transaction and whatever loss complainant has suffered, the accused has already repaid the said amount and with a sole intent to clarify the said situation, complainant was called upon to submit the documents in support of his claim but he failed to submit the supporting documents and consequently on the basis of whatever documents and materials available with the applicant, he formed an opinion that the dispute between the parties is essentially of civil nature and the accused have not committed any offence as alleged by the complainant. Therefore, the applicant informed the complainant by specifically stating that for the purpose of recovery of the said amount, complainant has to avail the remedy of filing a suit before the competent Civil Court against the accused persons. All those Page 13 of 27 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 21:17:39 IST 2025 NEUTRAL CITATION R/CR.MA/5740/2021 JUDGMENT DATED: 28/01/2025 undefined materials were supplied by the applicant before the concerned Court, despite, the Court concerned passed the impugned order which clearly goes on to show that the learned Court concerned has committed an error. Hence, an appropriate order may be passed and the prosecution launched against the applicant may be quashed. Learned APP Mr. Mehta has candidly made statement before this Court that if this kind of prosecution are launched against the investigating officer on the basis of application made by the complainant and/or any other party, there are all possible chances that no investigating officer would be safe in this State. He, therefore, submits that considering the facts of the present case, an appropriate order may be passed.
15. Learned advocate Ms. Sonal Tiwari for respondent No.2 - original complainant has objected present application with vehemence and submitted that after considering and appreciating all the materials available on record, the learned Judge has passed just, fair and reasonable order based on sound principle of law and therefore no interference is required to be made by this Court at this juncture. She has further submitted that she would like to rely upon certain material, which is placed on record along with her affidavit-in-reply. She has referred to the the sequence of events of incident occurred in the present matter and submitted that on 28.09.2020, one complaint in the form of an application was given Page 14 of 27 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 21:17:39 IST 2025 NEUTRAL CITATION R/CR.MA/5740/2021 JUDGMENT DATED: 28/01/2025 undefined by the complainant to the Police Commissioner, Surat and Police Inspector, Sarthana Police Station. Despite receipt of the said application by the Police Inspector, Sarthana Police Station, preliminary inquiry as directed by the Hon'ble Apex Court in the case of Lalita Kumari (supra) has not been initiated and concluded by the investigating officer. Not only that as per the decision of the Hon'ble Apex Court in the case of Lalita Kumari, if the preliminary inquiry is not completed within a period 7 days, in that event, the investigating officer concerned has to make note to that effect in the station diary. Admittedly, the applicant has failed to produce Station Diary or General Diary or Case Diary. Thus, when the applicant has violated the directions issued by the Hon'ble Apex Court in the case of Lalita Kumari (supra), learned Court concerned has rightly passed the order, which is not required to be interfered by this Court. She further submits that during the course of investigation, statement of the complainant was also recorded on 15.10.2020 wherein the complainant has narrated entire sequence of events and the transactions entered into between the complainant and accused persons. The complainant has also specifically mentioned the name of websites and tenure of transactions i.e. 10.09.2019 to 04.07.2020. However, for the reasons best known to the applicant, he has not considered the aforesaid period and come to the conclusion that the dispute between the parties is essentially of civil nature. Thus, when Page 15 of 27 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 21:17:39 IST 2025 NEUTRAL CITATION R/CR.MA/5740/2021 JUDGMENT DATED: 28/01/2025 undefined the learned Trial Court has passed an order after considering and appreciating all the aforesaid materials available on record, this Court may not interfere with the said order. Hence, the present application may be dismissed.
16. Having heard the learned advocates appearing for the parties and having gone through the materials and documents available on record, it is found out that complainant has filed one complaint in the form of an application before the Police Commissioner, Surat and Police Inspector, Sarthana Police Station on 28.09.2020 specifically stating that offence of criminal breach of trust and cheating is committed by the accused persons, wherein, he has narrated the entire sequence of events. Pursuant to the aforesaid application, the then Police Inspector of Sarthana Police Station viz. Mr. B. C. Solanki initiated the inquiry and also recorded the statement of the complainant on 15.10.2020. However, said Mr. Solanki came to be transferred and the present applicant took charge of the said police station on 22.10.2020 and thereafter carried out further inquiry by recording statements of respondent Nos. 2 and 3 also. After recording the statements of the complainant and accused person, the applicant jumped to the conclusion that, prima facie, it seems that no cognizable offence is committed by the accused persons as alleged by the respondent No.2 - complainant and the dispute between the parties is Page 16 of 27 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 21:17:39 IST 2025 NEUTRAL CITATION R/CR.MA/5740/2021 JUDGMENT DATED: 28/01/2025 undefined essentially of civil nature.
17. As soon as the respondent No.2 - complainant came to know about the aforesaid decision, he filed private complaint before the learned Court concerned and the learned Court concerned took cognizance upon the said complaint and passed order dated 01.03.2021 under Section 202 Cr.P.C. and directed the investigating officer to submit a detailed report. The said order is passed after recording the verification of the complainant. Therefore, the learned Court has already taken cognizance upon the facts of the matter. on 01.03.2021 itself, the respondent No.2 filed another application, inter alia, praying to initiate the proceedings under Section 166A of the Indian Penal Code against the applicant alleging that the applicant has violated the directions issued by the Hon'ble Apex Court in the case of Lalita Kumari (supra). The respondent No.2 - original complainant has made specific allegations against the applicant that he has not scrupulously followed the guidelines and directions issued by the Hon'ble Apex Court in the case of Lalita Kumari (supra) and therefore appropriate prosecution under Section 166A of the IPC is required to be instituted against the applicant. Based upon the said application, the Court concerned passed an order to issue notice against the applicant and called for certain information. Pursuant to which, the applicant appeared before the Court along with Page 17 of 27 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 21:17:39 IST 2025 NEUTRAL CITATION R/CR.MA/5740/2021 JUDGMENT DATED: 28/01/2025 undefined the materials. However, the learned Court concerned after appreciating and verifying the materials available on record, passed the impugned order whereby direction came to be issued to the D.C.P., Surat to register complaint against the applicant under section 154(1) of the Cr.P.C. for the offence punishable under Section 166A of the IPC.
18. At this stage, I would like to refer to the provision of Section 166A IPC, which reads as under:
"166-A. Public servant disobeying direction under law.-- Whoever, being a public servant.
--
(a) knowingly disobeys any direction of the law which prohibits him from requiring the attendance at any place of any person for the purpose of investigation into an offence or any other matter, or
(b) knowingly disobeys, to the prejudice of any person, any other direction of the law regulating the manner in which he shall conduct such investigation, or
(c) fails to record any information given to him under sub-section (1) of Section 154 of the Code of Criminal Procedure, 1973, in relation to cognizable offence punishable under Section 326A, Section 326B, Section 354, Section 354B, Section 370, Section 370A, Section 376, Section 376A, Section 376B, Section 376C, Section 376D, Section 376E, Section 509, Page 18 of 27 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 21:17:39 IST 2025 NEUTRAL CITATION R/CR.MA/5740/2021 JUDGMENT DATED: 28/01/2025 undefined shall be punished with rigorous imprisonment for a term which shall not be less than six months but which may extend to two years and shall also be liable to fine."
19. The Hon'ble Apex Court in the case of Lalita Kumari (supra) observed and held as under:
"41. Section 166A(c) lays down that if a public servant (Police Officer) fails to record any information given to him under Section 154(1) of the Code in relation to cognizable offences punishable under Sections 326A, 326B, 354, 354B, 370, 370A, 376, 376A 376B, 376C, 376D, 376E or Section 509, he shall be punished with rigorous imprisonment for a term which shall not be less than six months but may extend to two years and shall also be liable to fine. Thus, it is the stand of learned counsel that this provision clearly indicates that registration of FIR is imperative and police officer has no discretion in the matter in respect of offences specified in the said section. Therefore, according to him, the legislature accepts that as far as other cognizable offences are concerned, police has discretion to hold a preliminary inquiry if there is doubt about the correctness of the information.
42. Although, the argument is as persuasive as it appears, yet, we doubt whether such a presumption can be drawn in contravention to the unambiguous words employed in the said provision. Hence, insertion of Section 166A in the IPC vide Criminal Law (Amendment) Act 2013, must be read in consonance with the provision and not contrary to it. The insertion of Section 166A was in the light Page 19 of 27 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 21:17:39 IST 2025 NEUTRAL CITATION R/CR.MA/5740/2021 JUDGMENT DATED: 28/01/2025 undefined of recent unfortunate occurrence of offences against women. The intention of the legislature in putting forth this amendment was to tighten the already existing provisions to provide enhanced safeguards to women. Therefore, the legislature, after noticing the increasing crimes against women in our country, thought it appropriate to expressly punish the police officers for their failure to register FIRs in these cases. No other meaning than this can be assigned to for the insertion of the same.
xxx xxx xxx 120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case.The category of cases in which preliminary inquiry may be made are as under:
a) Matrimonial disputes/ family disputes
b) Commercial offences
c) Medical negligence cases
d) Corruption cases
e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
Page 20 of 27 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 21:17:39 IST 2025NEUTRAL CITATION R/CR.MA/5740/2021 JUDGMENT DATED: 28/01/2025 undefined 120.7 While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry."
20. It is found out from the operative part of the order of the Hon'ble Apex Court in the case of Lalita Kumari (supra) that certain category of cases have been described by the Hon'ble Apex Court whereupon straight way complaint is not required to be filed but the police officer concerned has to carry out preliminary inquiry and thereafter if at all police officer concerned jumps to the conclusion that cognizable offence is prima facie found to be made out, in that event, he has to register complaint against the accused persons. Bare perusal of the complaint clearly goes on to show that there was some monetary transactions took place between the complainant and accused persons and the said transactions can be termed as commercial transaction and therefore investigating officer concerned has instead of registering the complaint straight way, thought it fit to carry out preliminary inquiry. During the course of inquiry, applicant has recorded the statements of the complainant as well as accused persons and during the course of investigation certain materials have been supplied by the parties. Based upon the same, the applicant has formed an Page 21 of 27 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 21:17:39 IST 2025 NEUTRAL CITATION R/CR.MA/5740/2021 JUDGMENT DATED: 28/01/2025 undefined opinion that there was some monetary transactions took place between the parties and accused persons have already paid certain amount to the complainant through cheque and entries to that effect were also supplied to the applicant and with a sole intent to verify and justify the stand taken by the accused persons, time and again complainant was directed to come and supply the documents. However, those documents have not been supplied by the complainant. Therefore, based on the material available before him, the applicant has jumped to the conclusion that the dispute between the parties is essentially of a civil nature and for the recovery of the amount, complainant has to avail civil remedy.
21. It is also found out from the record that at the time of entertaining the application preferred by the original complainant, the Court concerned has deviated from the settled practice and procedure of law. By making cursory glance upon the averments of the complaint, it is clearly found out that name of the present applicant was not at all there in the list of the proposed accused. Therefore, at the time of institution of the complaint complainant has not joined him as an accused. However, subsequently, certain averments about breach of the directions issued by the Hon'ble Apex Court by the applicant are made. Based upon the allegations and accusations Page 22 of 27 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 21:17:39 IST 2025 NEUTRAL CITATION R/CR.MA/5740/2021 JUDGMENT DATED: 28/01/2025 undefined levelled against the original accused, the Court concerned thought it fit to seek an opinion from the police authority under Section 202 of Cr.P.C. and that is why after recording the verification of the complainant, the Court concerned has passed order of police inquiry and called report from the police officer. Therefore, cognizance upon the facts of the complaint has already been taken by the Court concerned at the time of passing the same order. Thereafter an application is preferred by the complainant specifically stating that earlier he had preferred an application in the form of complaint whereupon inquiry officer concerned has to submit his report within the time framed schedule. However, the the inquiry officer concerned - applicant herein has not scrupulously and meticulously followed the guidelines and directions issued by the Hon'ble Apex Court in the case of Lalita Kumari (supra) and therefore prosecution under Section 166A of the IPC is required to be launched against the applicant, whereupon, the court concerned issued notice to the applicant and directed him to produce documents pertaining to the inquiry. The applicant had already supplied all those material which clearly goes on to show that applicant has taken charge of the police station after lapse of period of 7 days. Essentially on account of non-compliance of the directions issued by the Hon'ble Apex Court, the Court concerned has passed the impugned order. The said view adopted by Page 23 of 27 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 21:17:39 IST 2025 NEUTRAL CITATION R/CR.MA/5740/2021 JUDGMENT DATED: 28/01/2025 undefined the learned Judge is against the material available on record. Therefore, the impugned order passed by the learned Court concerned is required to be quashed and set aside.
22. If the facts of the present case are to be examined in the context of the aforesaid observations made by the Hon'ble Apex Court, in that event, by no stretch of imagination it can be said that applicant has committed breach of the observations of the Hon'ble Apex Court. It is an admitted position of fact that respondent No.2 - original complainant has filed a complaint in the form of an application on 28.09.2020, which was received by the concerned Police Station on 06.10.2020. At that relevant point of time, applicant was not working in the said police station and his predecessor one Mr. B. C. Solanki was in-charge of the said Police Station. As per the aforesaid observations made by the Hon'ble Apex Court, preliminary inquiry pertains to some offences should be made within 7 days and if there is delay in the said inquiry then the causes of such delay must be reflected in the General Diary entry. However, the applicant took the charge of the said police station on 22.10.2020 and therefore it cannot be said that applicant has blatantly disregarded and flouted the directions issued by the Hon'ble Apex Court in the aforesaid decision which would warrant initiation of penal action against him since he was not in-charge Page 24 of 27 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 21:17:39 IST 2025 NEUTRAL CITATION R/CR.MA/5740/2021 JUDGMENT DATED: 28/01/2025 undefined or working in the said police station at the relevant point of time. At the most, he can be held liable for dereliction of duty in not maintaining the General Diary/Station Diary/Daily Diary and for that departmental inquiry can be initiated and/or contempt proceedings can be initiated before the Court by way of preferring an appropriate application but certainly prosecution under Section 166A IPC cannot be launched against him.
23. The Hon'ble Apex Court in the case of Devarapally Lakshminarayana Reddy (supra), observed and held as under:
17. Section 156(3) occurs in Chapter XII, under the caption: "Information to the Police and their powers to investigate"; while s. 202 is in Chapter XV which bears the heading "Of complaints to Magistrates". The power It order police investigation under s. 156(3) is different from the power to direct investigation conferred by s. 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the pre cognizance stage, the second at the post-
cognizance stage when the Magistrate is in seisin of the case. 'That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under s. 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under s. 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of s. 156(3). It may be noted Page 25 of 27 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 21:17:39 IST 2025 NEUTRAL CITATION R/CR.MA/5740/2021 JUDGMENT DATED: 28/01/2025 undefined further that an order made under sub-section (3) of s. 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under s. 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under s. 156 and ends with a report or chargesheet under s. 173. On the other hand s. 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under s. 202 to direct within the limits circumscribed by that section, an investigation "for the purpose of deciding whether or not here is sufficient ground for proceeding ". Thus the object of an investigation under s. 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him.
18. In the instant case the Magistrate did not apply his mind to the complaint for deciding whether or not there is sufficient ground for proceeding; but only for ordering an investigation under s. 156(3). He did not bring into motion the machinery of Chapter XV. He did not examine the complaint or his witnesses under s. 200, Cr.P.C., which is the first step in the procedure prescribed under that Chapter. The question of taking the next step of that procedure envisaged in s. 202 did not arise. Instead of taking cognizance of the offence he has., in the exercise of his discretion, sent the complaint for investigation by police under s. 156.
Page 26 of 27 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 21:17:39 IST 2025NEUTRAL CITATION R/CR.MA/5740/2021 JUDGMENT DATED: 28/01/2025 undefined
24. It is well settled proposition of law that once the learned Court concerned takes cognizance and embarks upon the procedure embodied in Chapter XV, it is not competent to switch back to the pre-cognizance stage and avail of Section 156(3).
25. In view of the aforesaid observations, the application is allowed. Accordingly, the order dated 15.03.2021 passed by learned 21st Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Surat in application Exh.4 filed in Criminal Enquiry No.26 of 2021 is hereby quashed and set aside qua registration of FIR against the applicant for the offence punishable under Section 166A of the IPC is concerned.
(DIVYESH A. JOSHI,J) LAVKUMAR J JANI Page 27 of 27 Uploaded by LAVKUMAR J JANI(HC00210) on Tue Feb 04 2025 Downloaded on : Tue Feb 04 21:17:39 IST 2025