Gujarat High Court
Pramodbhai Revabhai Parmar vs State Of Gujarat on 8 September, 2022
Author: Samir J. Dave
Bench: Samir J. Dave
R/CR.RA/135/2021 JUDGMENT DATED: 08/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 135 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SAMIR J. DAVE Sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PRAMODBHAI REVABHAI PARMAR
Versus
STATE OF GUJARAT
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Appearance:
PARTY IN PERSON(5000) for the Applicant(s) No. 1
for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 08/09/2022
ORAL JUDGMENT
1. By way of present Criminal Revision Application, the applicant seeks appropriate direction to the respondent authorities to forthwith register an FIR of the applicant pursuant to the written complaints dated 24.03.2017 and Page 1 of 14 Downloaded on : Sun Dec 25 01:23:45 IST 2022 R/CR.RA/135/2021 JUDGMENT DATED: 08/09/2022 05.11.2017 submitted by the applicant before the respondent No.2- Police Inspector, Mansa Police Station, Gandhinagar, against three accused persons, who are named in the said complaint as accused for the offence punishable under the provisions of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 and investigate the same in accordance with law and also seeks direction to quash and set aside order dated 02.12.2020 passed by the learned Additional Sessions Judge (Atrocities) Sessions Court, District Gandhinagar in Preliminary Inquiry No.6 of 2020 and also seeks direction to remand back the matter to the Special (Atrocity) Court, Gandhinagar.
2. The brief facts of the case are that on 06.03.2017 the Village Panchayat has issued notice to the applicant to remove encroachment and thereafter, the applicant moved an application to the Police Inspector, Mansa Police Station and requested respondent no.2 to register his complaint. However, the respondent no.2 did not register any complaint as per the say of the applicant and therefore, present applicant has preferred Special Criminal Application No.8685 of 2018 before this Court wherein this Court vide Page 2 of 14 Downloaded on : Sun Dec 25 01:23:45 IST 2022 R/CR.RA/135/2021 JUDGMENT DATED: 08/09/2022 order dated 26.04.2019 given direction to respondent no.2 to register first information report within a period of one week from the date of the order. However, there was no fruitful outcome and therefore, the applicant has again approached this Court by way of Criminal Misc. Application No.1 of 2019 in Special Criminal Application No.8688 of 2018, whereby this Court has directed the applicant to approach the higher official under sections 154(3) of the Code of Criminal Procedure and if the applicant is aggrieved by the outcome of the senior police authorities, he shall approach the concerned Court for lodging the private complaint under section 200 of the Code of Criminal Procedure Code. Therefore, the applicant has filed Preliminary Inquiry No.6 of 2020 before the learned Special Atrocity Judge and 3rd Additional Sessions Judge, Gandhinagar, wherein the learned Sessions Court, Gandhinagar after recording evidence has dismissed preliminary inquiry no.6 of 2022 vide impugned order dated 02.12.2020. Being aggrieved by the impugned order of the learned Sessions Court, Gandhinagar, the applicant has challenged the same before this Court.
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3. Heard Mr.Pramodbhai Revabhai Parmar, who appears as party-in-person and learned APP Mr. R. C. Kodekar for the Respondent-State.
4. Mr. Pramodbhai Parmar, party-in-person submitted that Police Inspector, Mansa vide letter dated 19.01.2018 informed the complainant that during investigation, the allegations were not established and no offence is made out hence, complaint was filed. He also submitted that it was reported in the report dated 05.08.2018 of the Police Superintendent, Gandhinagar that the complainant has made verbal submissions and not produced the evidence to prove that he has not encroached on the government land. Thus, the investigation has wrongly revealed that no offence was made out and therefore no action on the complaint was required. He also submitted that it was brought to the notice of respondent no.2 that the Taluka Development Officer, Mansa prepared on the strength of the approved plan by District Development Officer, Mehsana. He also submitted that 'Sanad' prepared on the plan sanctioned by the District Development Officer, Mehsana was sent for approval. He submitted that as per the plan sanctioned by the District Page 4 of 14 Downloaded on : Sun Dec 25 01:23:45 IST 2022 R/CR.RA/135/2021 JUDGMENT DATED: 08/09/2022 Development Officer, there was no encroachment made by the applicant. He also submitted that the learned Sessions Judge has overlooked the facts of the complainant and statement on oath before the Court, wherein it is categorically mentioned that Rampura Gram Panchayat has wrongfully dispossessed him from his premises and interfered with peaceful enjoyment of his rights. He also submitted that the learned Sessions Judge has wrongfully drawn inference that the complainant is connected with the profession of advocacy and aggrieved with the action taken by Rampura Gram Panchayat. He therefore prayed that the impugned order may be quashed and set aside.
In support of his submissions, he referred to and relied upon the decision of the Hon'ble Apex Court in the case of Lalita Kumari Vs. State of Uttar Pradesh and Ors., reported in 2014 (2) SCC 1. He submitted that his complaint must be registered in view of the aforesaid judgment. He further referred to the provision of section 173(8) of the Code of Criminal Procedure and submitted that he may be permitted to submit his report before the Police Authority and also submitted that the police authority did not Page 5 of 14 Downloaded on : Sun Dec 25 01:23:45 IST 2022 R/CR.RA/135/2021 JUDGMENT DATED: 08/09/2022 consider his earlier report and has taken no decision to register his complaint under the Atrocities Act.
5. Learned APP Mr. R. C. Kodekar for the Respondent-State has strongly opposed the present application and submitted that the Hon'ble Court may pass appropriate order.
6. At this stage, it would be apposite to incorporate the observations made by the Hon'ble Apex Court in the case of M. Subramaniam v. S. Janki dated 20.03.2020 passed in Criminal Appeal No.102 of 2011. The Hon'ble Apex Court has observed thus;-
"5.While it is not possible to accept the contention of the appellants on the question of locus standi, we are inclined to accept the contention that the High Court could not have directed the registration of an FIR with a direction to the police to investigate and file the final report in view of the judgment of this Court in Sakiri Vasu v. State Of Uttar Pradesh And Others in which it has been inter alia held as under:
"11. In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154 of CrPC, then he can approach the Superintendent of Police under Section 154(3) CrPC by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application (2008) 2 SCC 409 under Section 156(3) CrPC before the learned Magistrate concerned. If such an Page 6 of 14 Downloaded on : Sun Dec 25 01:23:45 IST 2022 R/CR.RA/135/2021 JUDGMENT DATED: 08/09/2022 application under Section 156(3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.
12. Thus in Mohd. Yousuf v. Afaq Jahan this Court observed: (SCC p. 631, para 11) "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."
13. The same view was taken by this Court in Dilawar Singh v. State of Delhi (JT vide para 17). We would further clarify that even if an FIR has been registered and even if the police has made the investigation, or is actually making the investigation, which the aggrieved person feels is not proper, such a person can approach the Magistrate under Section 156(3) CrPC, and if the Magistrate is satisfied he can order a proper investigation and take other suitable steps and pass such order(s) as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) CrPC.
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14. Section 156(3) states:"156. (3) Any Magistrate empowered under Section 190 may order such an investigation as abovementioned." The words "as abovementioned" obviously refer to Section 156(1), which contemplates investigation by the officer in charge of the police station.
15. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII CrPC. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.
16. The power in the Magistrate to order further investigation under Section 156(3) is an independent power and does not affect the power of the investigating officer to further investigate the case even after submission of his report vide Section 173(8). Hence the Magistrate can order reopening of the investigation even after the police submits the final report, vide State of Bihar v. J.A.C. Saldanha (SCC : AIR para 19).
17. In our opinion Section 156(3) CrPC is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an FIR and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) CrPC, though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.
18. It is well settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Page 8 of 14 Downloaded on : Sun Dec 25 01:23:45 IST 2022 R/CR.RA/135/2021 JUDGMENT DATED: 08/09/2022 Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary for its execution."
6. The said ratio has been followed in Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage and Others2, in which it is observed.
"2. This Court has held in Sakiri Vasu v. State of U.P., that if a person has a grievance that his FIR has not been registered by the police, or having been registered, proper investigation is not being done, then the remedy of the aggrieved person is not to go to the High Court under Article 226 of the Constitution of India, but to approach the Magistrate concerned under Section 156(3) CrPC. If such an application under Section 156(3) CrPC is made and the Magistrate is, prima facie, satisfied, he can direct the FIR to be registered, or if it has already been registered, he can direct proper investigation to be done which includes in his discretion, if he deems it necessary, recommending change of the investigating officer, so that a proper investigation is done in the matter. We have said this in Sakiri Vasu case because what we have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation.
3. We are of the opinion that if the High Courts entertain such writ petitions, then they will be flooded with such writ petitions and will not be able to do any other work except dealing with such writ petitions. Hence, we have held that the complainant must avail of his alternate remedy to approach the Magistrate concerned under Section 156(3) CrPC and if he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation.
4. In view of the settled position in Sakiri Vasu case, the impugned judgment of the High Court cannot be sustained and is hereby set aside. The Magistrate concerned is directed Page 9 of 14 Downloaded on : Sun Dec 25 01:23:45 IST 2022 R/CR.RA/135/2021 JUDGMENT DATED: 08/09/2022 to ensure proper investigation into the alleged offence under Section 156(3) CrPC and if he deems it necessary, he can also recommend to the SSP/SP concerned a change of the investigating (2016) 6 SCC 277 officer, so that a proper investigation is done. The Magistrate can also monitor the investigation, though he cannot himself investigate (as investigation is the job of the police). Parties may produce any material they wish before the Magistrate concerned. The learned Magistrate shall be uninfluenced by any observation in the impugned order of the High Court.
8. In these circumstances, we would allow the present appeal and set aside the direction of the High Court for registration of the FIR and investigation into the matter by the police. At the same time, our order would not be an impediment in the way of the first respondent filing documents and papers with the police pursuant to the complaint dated 18.09.2008 and the police on being satisfied that a criminal offence is made out would have liberty to register an FIR. It is also open to the first respondent to approach the court of the metropolitan magistrate if deemed appropriate and necessary. Equally, it will be open to the appellants and others to take steps to protect their interest."
7. While referring to the judgment of Sudhir Bhaskarrao Tambe (supra), it is observed that if the High Courts entertain such writ petitions seeking registration of FIR, then they will be flooded with such writ petitions and will not be able to do any other work, except dealing with them. It is specifically held that the complainant must avail of his alternate remedy to approach the Magistrate concerned under section 156(3) of Cr.P.C and if he does so, the Magistrate will ensure, if prima facie he is satisfied, Page 10 of 14 Downloaded on : Sun Dec 25 01:23:45 IST 2022 R/CR.RA/135/2021 JUDGMENT DATED: 08/09/2022 registration of the FIR and also ensure a proper investigation in the matter. While approving the afforested view, the Supreme Court has set aside the direction of the High Court for registration of the FIR and has directed the respondent thereto to approach the court of Magistrate if deem appropriate and necessary. Thus, the law on the registration of FIR is well settled and has been reiterated in the recent judgment of the Supreme Court as noted herein above.
8. It appears that the learned Trial Court has rightly observed that upon investigation done by the police authority, it is found that there is no commission of any cognizable offence and hence, the application of the applicant was filed as the dispute between the parties is of civil nature and therefore, prima facie, the learned Trial Court has observed that it is a civil dispute. It also appears that the learned Trial Court was Special Court and it has no powers to take cognizance in the private complaint under the Atrocities Act and also there are no facts and circumstances that there is commission of any crime under the Atrocities Act and hence, there is no requirement of filing FIR against the Page 11 of 14 Downloaded on : Sun Dec 25 01:23:45 IST 2022 R/CR.RA/135/2021 JUDGMENT DATED: 08/09/2022 members of the Village Panchayat, who have issued notice and removed the encroachment made by the present applicant.
9. In view of the above facts and circumstances of the case and in light of the observations made by the Hon'ble Apex Court, I am of the considered opinion that the Trial Court has not committed any illegality or infirmity in passing the impugned order. I am in complete agreement with the reasoning given by the learned Trial Court in the impugned order and hence, I find no reason to entertain this application.
10. Thus, as per aforesaid discussion and from the observations of the learned Trial court in the impugned order, it appears that applicant has tried to linger the matter and therefore, this court deems it fit to impose some cost upon the applicant and in this connection, in case of Salem Advocate Bar Association, T. N. versus Union of India, reported in (2005) 6 SCC 344, Larger Bench of Hon'ble Apex Court has held as under:
"The costs have to be actual reasonable costs including the cost of the time spent by the successful party, the transportation and lodging, if any, or any other incidental Page 12 of 14 Downloaded on : Sun Dec 25 01:23:45 IST 2022 R/CR.RA/135/2021 JUDGMENT DATED: 08/09/2022 cost besides the payment of the court fee, lawyer's fee, typing and other cost in relation to the litigation."
9. Costs: ....if any of the parties has unreasonably protracted the proceedings, the Judge should consider exercising discretion to impose exemplary costs ......"
11. Moreover, in another judgment passed in case of Dashrathlal M. Patel, Heirs and LR of Maganbhai Joitaram and Ors. v. State of Gujarat and Ors. reported in 2013(1) GLR 418, Division Bench of this Court has held that:
"10.1 Coming to the next question regarding costs, we find that learned Single Judge has rightly arrived at the conclusion that there is abuse of process of law by both the sets of petitioners before him i.e. by both the sets of appellants in these appeals. Learned Single Judge has also recorded that not only the petitions are required to be dismissed with costs but are required to be dismissed with exemplary costs. Learned Single Jude, in his discretion, quantified that exemplary costs to be Rs. 15000/- and Rs.10,000/-. Learned counsel for the respondents in these appeals have addressed this court, also contending that, once learned Single Judge was convinced that the petitions are required to be dismissed with exemplary costs, in the facts and circumstances of the case, Rs. 15000/- and Rs.10,000/- can not be said to be exemplary cost, and more cost should have been imposed."
12. Thus, as per the aforesaid discussion and legal provisions and settled law, this court is not inclined to accept the prayer of the applicant and accordingly, present application stands rejected with cost of Rs.1,00,000/- (Rupees One Page 13 of 14 Downloaded on : Sun Dec 25 01:23:45 IST 2022 R/CR.RA/135/2021 JUDGMENT DATED: 08/09/2022 Lakh only) and applicant is directed to deposit such cost of Rs.1,00,000/- within a period of 8 weeks from date of receipt of this order before the Gujarat State Legal Services Authority, Gujarat High Court, Sola, Ahmedabad.
Sd/-
(SAMIR J. DAVE,J) MEHUL B. TUVAR Page 14 of 14 Downloaded on : Sun Dec 25 01:23:45 IST 2022