Gujarat High Court
Jivrajbhai Narsinhbhai Vaghela vs State Of Gujarat on 5 July, 2023
Author: Gita Gopi
Bench: Gita Gopi
R/CR.RA/497/2023 ORDER DATED: 05/07/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 497 of 2023
With
CRIMINAL MISC. APPLICATION (FOR JOINING PARTY)
NO. 1 of 2023
In R/CRIMINAL REVISION APPLICATION NO. 497 of 2023
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JIVRAJBHAI NARSINHBHAI VAGHELA
Versus
STATE OF GUJARAT
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Appearance:
APURVA K JANI(7057) for the Applicant(s) No. 1
MS JIRGA JHAVERI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 05/07/2023
ORAL ORDER
1. Heard, learned advocate Mr. Apurva Jani for the applicant in criminal revision application. Attention of the Court is drawn to a judicial order dated 03.04.2023 passed by the learned Additional Chief Judicial Magistrate, Talaja, District: Bhavnagar (the learned Additional Chief Judicial Magistrate) on a complaint, noted to be as 'unregistered Criminal Application No. 1 of 2023'. It is unheard of Page 1 of 14 Downloaded on : Fri Jul 07 20:39:22 IST 2023 R/CR.RA/497/2023 ORDER DATED: 05/07/2023 that a complaint which is filed and number is titled as 'unregistered'.
2. Learned advocate Mr. Apurva Jani for the applicant submitted that the learned Additional Chief Judicial Magistrate, instead of registering the complaint under inquiry register, without even observing the facts of the complaint, had straightaway returned back the complaint where, no such procedure is laid down in the Criminal Procedure Code, 1973 (for brevity, 'Cr.P.C'), except that under Section 201 of the Cr.P.C., when a complaint is made to a Magistrate not competent to take cognizance of the offence. Learned advocate Mr. Jani stated that, if the complaint made to the learned Additional Chief Judicial Magistrate was found to be not competent to take cognizance, then he ought to have returned it for presentation to the proper Court with an endorsement to that effect as provided under Section 201.
3. The learned advocate for the applicant stated that the learned Additional Chief Judicial Magistrate has not even inquired by way of recording verification to the complaint as to whether the Page 2 of 14 Downloaded on : Fri Jul 07 20:39:22 IST 2023 R/CR.RA/497/2023 ORDER DATED: 05/07/2023 complainant had initiated the process of Section 154(3) of the Cr.P.C. It is stated that the only procedure which has been laid down in the Cr.P.C. is to follow Section 190 where, on receiving the complaint of facts, the empowered Magistrate to find out whether any cognizance is required to be taken for the offence alleged. The learned advocate for the applicant submitted that when the complainant has pleaded a case of non-registration of the FIR by the police and non-compliance of the directions issued by the Apex Court in the decision in Lalita Kumari v. Government of U.P. and Others, (2014) 2 SCC 1, the learned Additional Chief Judicial Magistrate was required to register the complaint in the inquiry register and should have recorded the verification or had made further inquiry, while had no authority to return back the complaint. It is stated that the learned Additional Chief Judicial Magistrate, either could have proceeded under Section 156(3) or under Section 202 of the Cr.P.C. or should have examined the complainant under Section 200 of the Cr.P.C. and after following the procedure, if had found that the complaint made to the learned Additional Chief Judicial Magistrate is not competent to take cognizance, then ought Page 3 of 14 Downloaded on : Fri Jul 07 20:39:22 IST 2023 R/CR.RA/497/2023 ORDER DATED: 05/07/2023 to have returned it for the presentation to the proper Court with an endorsement to that effect and if the complaint is not in writing then could have directed the complainant to the proper Court. The learned advocate for the applicant stated that Section 202 of the Cr.P.C. is for postponement of issuance of process and during that period, the learned Additional Chief Judicial Magistrate could have put the complainant under inquiry and have taken the evidence of the witnesses on oath by calling upon the complainant to produce all his witnesses and on examining the statements, if the learned Additional Chief Judicial Magistrate was of the opinion that there is no sufficient ground for proceeding then he could have dismissed the complaint. While, on contrary, if the learned Additional Chief Judicial Magistrate deems it fit to take cognizance, then, there could have been an order of issuance of process.
4. The learned advocate for the applicant further stated that if the learned Additional Chief Judicial Magistrate had not proposed to take cognizance of the complaint then, at a pre-cognizance stage, could have passed an order of inquiry under Section 156(3) of the Page 4 of 14 Downloaded on : Fri Jul 07 20:39:22 IST 2023 R/CR.RA/497/2023 ORDER DATED: 05/07/2023 Cr.P.C.
5. Perused the order passed by the learned Additional Chief Judicial Magistrate. It is observed by the learned Additional Chief Judicial Magistrate that, he having heard the complainant side and perusing the complaint along with the record, found the complaint was given on 15.03.2023 before Dantha Police Station in writing and the learned Additional Chief Judicial Magistrate found that immediately within 3 days, the complaint was moved before him and expected for immediate order and has further observed that the complainant has not come through proper channel and though had all the remedies, without compliance of provisions of Section 154(3), had straightaway come to the Court and therefore, the complaint was returned back for adopting the proper remedy and therefore, finally, the ordered not to take the complaint on register. 5.1 It is unfortunate that the learned Additional Chief Judicial Magistrate has not even taken the complaint on register though the complainant had moved the application under the head of 'Misc. Page 5 of 14 Downloaded on : Fri Jul 07 20:39:22 IST 2023
R/CR.RA/497/2023 ORDER DATED: 05/07/2023 Criminal Inquiry Application'. The overwriting on the cause-title shows that the same was scored off and it was noted as 'Unregistered Criminal Application No. 1 of 2023'. The complaint before the learned Additional Chief Judicial Magistrate was filed on 18.03.2023, the order of returning the complaint is dated 03.04.2023 and as produced on record, the details of Track Consignment, the complainant had even sent communication to the DSP, Bhavnagar on 23.03.2023, which was received on 28.03.2023. The learned Additional Chief Judicial Magistrate rather than returning the complaint, should have registered the same in the inquiry register and could have inquired about the progress of application under Section 154(3) of the Cr.P.C.
5.2 In a decision in M. Subramaniam v. S. Janaki, (2008) 2 SCC 409, the Apex Court has observed as under:
"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, (2008) 2 SCC 409, in which, it has been Page 6 of 14 Downloaded on : Fri Jul 07 20:39:22 IST 2023 R/CR.RA/497/2023 ORDER DATED: 05/07/2023 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 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 under Section 156(3) CrPC before the learned Magistrate concerned. If such an 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 Page 7 of 14 Downloaded on : Fri Jul 07 20:39:22 IST 2023 R/CR.RA/497/2023 ORDER DATED: 05/07/2023 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.
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.
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R/CR.RA/497/2023 ORDER DATED: 05/07/2023
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. 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 Others, in which it is observed.
"2. This Court has held in Sakiri Vasu v. State of U.P., Page 9 of 14 Downloaded on : Fri Jul 07 20:39:22 IST 2023 R/CR.RA/497/2023 ORDER DATED: 05/07/2023 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 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 Page 10 of 14 Downloaded on : Fri Jul 07 20:39:22 IST 2023 R/CR.RA/497/2023 ORDER DATED: 05/07/2023 SSP/SP concerned a change of the investigating 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."
7. We are also surprised and concerned at the registration of the FIR in Crime No. 7 of 2010, notwithstanding, the stay order passed by this Court while issuing notice by which the operation of the impugned judgment was directed to remain stayed.
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.
9. We would clarify that this Court has not expressed any opinion on merits and whether or not the complaint discloses any criminal offence. The only clarification that is required is that a civil dispute should not be given the colour of a criminal offence, and at the same time mere pendency of the civil proceeding is not a good ground and justification to not register and investigate an FIR if a criminal offence has been committed.
10. Recording the aforesaid, the present appeal is partly Page 11 of 14 Downloaded on : Fri Jul 07 20:39:22 IST 2023 R/CR.RA/497/2023 ORDER DATED: 05/07/2023 allowed."
5.3 The learned Additional Chief Judicial Magistrate was required to follow the procedures as laid down in the Cr.P.C. There are cases where the litigants have grievance regarding non-registration of the FIR, the Apex Court, in Lalita Kumari (supra), considering such circumstances, has laid down certain guidelines to be followed by the police. In spite of that, there would be cases where the police may not be diligent enough to register a complaint or proceed for inquiry towards that complaint. Section 190 of the Cr.P.C. gives the power to the Court to take cognizance of an offence upon receiving a complaint of facts which constitutes such offence. Section 210 of the Cr.P.C., further lays down the procedures to be followed where there is complaint case and a police investigation in respect of the same offence. The learned Additional Chief Judicial Magistrate concerned could have followed the provisions of Section 210 of the Cr.P.C. in the case, where it was found that a complaint was also filed before the police station. The learned Additional Chief Judicial Magistrate, when during the course of inquiry finds that the investigation by the police is in progress in relation to the offence, Page 12 of 14 Downloaded on : Fri Jul 07 20:39:22 IST 2023 R/CR.RA/497/2023 ORDER DATED: 05/07/2023 which is the subject matter of the inquiry, the learned Additional Chief Judicial Magistrate shall stay the proceeding of the inquiry and call for the report on the matter from the police office conducting investigation. In this case, thus, in accordance to Section 210(1) of the Cr.P.C., it was incumbent upon the learned Additional Chief Judicial Magistrate to call for the report from the police and could have in the interregnum, stayed the inquiry. The impugned order is faulty and illegal. There is no provision in the law to return back the complaint to the complainant except to follow Section 201 of the Cr.P.C.
6. In the result, the impugned order is set aside. The learned Additional Chief Judicial Magistrate is directed to follow the directions issued by the Apex Court in the case of M. Subramaniam (supra), and the provisions of Section 210 of the Cr.P.C. 6.1 With aforesaid, the revision application is disposed of.
6.2 In view of the main revision application is disposed of as Page 13 of 14 Downloaded on : Fri Jul 07 20:39:22 IST 2023 R/CR.RA/497/2023 ORDER DATED: 05/07/2023
aforesaid, learned advocate Mr. Virat Popat does not press the Criminal Misc. Application No. 1 of 2023. The same, accordingly, stands disposed of.
[ Gita Gopi, J. ] hiren /PC-9 Page 14 of 14 Downloaded on : Fri Jul 07 20:39:22 IST 2023