Gujarat High Court
Nishant Deshdipak Varma vs State Of Gujarat & on 5 November, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.RA/444/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 444 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? YES
2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of India
NO
or any order made thereunder ?
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NISHANT DESHDIPAK VARMA....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR KR KOSHTI, ADVOCATE for the Applicant(s) No. 1
SHRI KAMAL TRIVEDI, ADVOCATE GENERAL WITH
MR MITESH AMIN, PUBLIC PROSECUTOR WITH
MS SANGITA K VISHEN, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 05/11/2015
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1 By this Revision Application under Section 401 read with Section 397 of the Code of Criminal Procedure, 1973, the Revisionist - original complainant calls in question the legality and validity of the order dated 11.05.2015 passed by the Chief Judicial Magistrate, Ahmedabad (Rural), below Exhibit: 1 in the Criminal Inquiry No.78 of 2014, by which, the learned Magistrate dismissed the complaint under Section 203 of the Cr.P.C.
2 The facts in brief of this case are as under:
2.1 The Revisionist filed a private complaint in the Court of the learned Chief Judicial Magistrate, First Class, Ahmedabad (Rural) against the respondent No.2 herein for the offence punishable under Sections 123, 126(1)(a), 126(1)(b), 130 of the Representation of the People Act, 1951, and Sections 171C, 171F, 188 and 114 of the Indian Penal Code. The complainant prayed before the learned Magistrate that the police officer of the Ranip Police Station be directed to register the F.I.R. and undertake the investigation of the complaint under Section 156(3) of the Code of Criminal Procedure, 1973.
2.2 It appears that the complaint was registered as the Criminal Inquiry No.78 of 2014. On 08.05.2014, the learned 6th Additional Civil Page 2 of 31 HC-NIC Page 2 of 31 Created On Fri Nov 06 03:00:20 IST 2015 R/CR.RA/444/2015 CAV JUDGMENT Judge and Judicial Magistrate, First Class, Ahmedabad (Rural) passed an order calling for the report of the investigation undertaken by the D.C.B. Police Station with respect to the very same subject matter pursuant to the F.I.R. lodged by the Police Inspector of Crimes, Ahmedabad with the D.C.B. Police Station, Ahmedabad. In such circumstances, the learned Magistrate stayed the inquiry under Section 210 of the Cr.P.C. and called for the report from the police.
2.3 After going through the final report filed by the Investigating Officer and D.C.P. Crime Branch, Ahmedabad dated 08.08.2014, the learned Chief Magistrate, Ahmedabad (Rural) thought fit to dismiss the complaint filed by the Revisionist herein under Section 203 of the Cr.P.C.
2.4 It is the case of the complainant that the date on which the offence, as alleged, is said to have been committed, the respondent No.2 was the Chief Minister of the State of Gujarat. The respondent No.2 arrived at the Nishan Vidhyalay, Balolnagar, Ranip, at about 9.00 hours in the morning on 30.04.2014 to cast his vote with respect to the parliament election. It is the case of the complainant that after casting his vote, the respondent No.2 came out of the School premises and had an interaction with the media. The respondent No.2 is alleged to have Page 3 of 31 HC-NIC Page 3 of 31 Created On Fri Nov 06 03:00:20 IST 2015 R/CR.RA/444/2015 CAV JUDGMENT been holding a "white coloured lotus symbol in his hand". He is alleged to have taken a "selfie" on a smart phone and addressed the gathering in favour of the media. He is alleged to have engaged himself in the election campaign on the very day of the election. It is the case of the complainant that thereby, the respondent No.2 committed an offence, as enumerated above. According to the complainant, the respondent No.2 could not have addressed the media within the restricted area of hundred meters from the polling booth, and also, could not have shown the "white coloured lotus" to influence the people on the very day of the election.
2.5 It appears that on 30.04.2014, the Director General of Police, State of Gujarat received a communication from the Election Commission of India, issuing directions for filing complaint / FIR against the opponent No.2 herein for the alleged violation of the provisions of sections 126(1)(a) and section 126(1)(b) of the Representation of People Act, 1951 and Section 188 of the IPC as well as against the TV channels and other electronic media for the alleged violation of Section 126(1)(b) of the Representation of People Act, 1951.
2.6 On 30.04.2014, apropos the above, one Mr. H.A. Rathod, Police Inspector of Crimes, Ahmedabad City lodged FIR which came to be registered as CR No.3045/2014 with the Detection of Crime Branch Page 4 of 31 HC-NIC Page 4 of 31 Created On Fri Nov 06 03:00:20 IST 2015 R/CR.RA/444/2015 CAV JUDGMENT ('DCB' for short) Police Station, Ahmedabad against the opponent No.2 herein under Section 126(1)(a) and 126(1)(b) of the Representation of People Act, 1951 and Section 188 of the IPC, 1860, and in furtherance thereof, the Deputy Commissioner of Police, Crime Branch, Ahmedabad City started the investigation under section 155 of Cr.P.C.
2.7 On 30.04.2014 itself, the Revisionist herein through email sent communications to the DGP, Gujarat and CP Ahmedabad City, stating inter alia that as per the attached file and news paper reports, the opponent No.2 after coming out of the polling booth i.e. after casting vote, flashed his party symbol and hence, his said complaint may be considered by issue of appropriate instructions to file FIR against the opponent No.2.
2.8 On 01.05.2014, the Deputy Commissioner of Police, Crime Branch, Ahmedabad City, informed the petitioner in writing that on 30.04.2014 the F.I.R. of P.I. Mr. Rathod had been registered at 17:10 p.m. in respect of the alleged violation of Sections 126(1)(a) and 126(1)
(b) of the Representation of People Act and of Section 188 of the IPC, 1860, with the DCB Police Station, Ahmedabad.
2.9 The petitioner filed a Criminal Miscellaneous Application No.78 of Page 5 of 31 HC-NIC Page 5 of 31 Created On Fri Nov 06 03:00:20 IST 2015 R/CR.RA/444/2015 CAV JUDGMENT 2014 against the opponent No.2 herein and others in the Court of the learned Judicial Magistrate, First Class, Ahmedabad (Rural) with regard to the same incident as was covered in the aforesaid FIR filed at the behest of the Election Commission of India, with a prayer to register his FIR against the opponent No.2 and others for the alleged violation of the provisions of Sections 123, 126(1)(a), 126(1)(b) and 130 of the Representations of People Act, 1851 and of Sections 171(c), 171(f), 188 and 114 of IPC and undertake the investigation under Section 156(3) of Cr.P.C. In the aforesaid application, the petitioner specifically referred to the FIR filed by Shri H.A. Rathod, P.I., Crime Branch, Ahmedabad City, with reference to the very same incident. The application or rather the complaint was registered as the criminal inquiry. 2.10 On 08.05.2014, the learned Judicial Magistrate, First Class, Ahmedabad (Rural) passed an order in the Criminal Inquiry No.78 of 2014 by inter alia staying the further actions therein, as per Section 210 of the Cr.P.C., in view of the fact that for the very same incident, an F.I.R. was already registered with the D.C.B. Police Station, Ahmedabad against the opponent No.2 and others in respect of which, the investigation was carried on by the DCP, Crime Branch, Ahmedabad, who was accordingly directed to give a progress report. Page 6 of 31 HC-NIC Page 6 of 31 Created On Fri Nov 06 03:00:20 IST 2015 R/CR.RA/444/2015 CAV JUDGMENT 2.11 On 08.08.2014, the Investigating Officer and DCP, Crime Branch, Ahmedabad, after a thorough investigation, came to a finding in his final report that no offence punishable under Sections 126(1)(a), 126(1)(b) and 130 of the Representation of People Act, 1951 was made out as there was no evidence worth the name to suggest that the opponent No.2 had addressed a public meeting and demonstrated the party's election symbol, within the restricted area of 100 meters from the polling station at the elections of 26th Lok Sabha seat at Nishan Vidyalaya, Balolnagar, Ranip and that even the alleged offence for the violation of Sections 171(c), 171(f) and 188 of the IPC were also not made out. On the basis of the said findings, the investigating officer submitted his conclusion in the form of a final report in connection with the FIR being DCB PS II C.R. No.3045 of 2014, in the Court of the learned Magistrate, Ahmedabad City.
2.12 On 22.08.2014, the learned Magistrate, Ahmedabad City, after having heard the parties, passed an order accepting the aforesaid final report by dropping the proceedings of the above referred FIR registered at the DCB Police Station, Ahmedabad City.
2.13 On 01.10.2014, the petitioner, although obtained the copy of the aforesaid final report, yet gave an application under Section 91 of Page 7 of 31 HC-NIC Page 7 of 31 Created On Fri Nov 06 03:00:20 IST 2015 R/CR.RA/444/2015 CAV JUDGMENT Cr.P.C. i.e. Exhibit: 9 for production of all the statements, documents, etc, referred to in the final closure report, in the Court of the learned Magistrate, Ahmedabad (Rural).
2.14 On 14.11.2014, the learned Magistrate, Ahmedabad (Rural) passed an order rejecting the aforesaid application below Exhibit: 9 filed by the petitioner.
2.15 On 11.05.2015, the learned Magistrate, Ahmedabad (Rural) passed an order dismissing the aforesaid application of the petitioner by observing inter alia that the investigation carried out with regard to the FIR lodged at the behest of the Election Commission of India was just and proper and no prima facie case was made out against the opponent No.2 herein. On none of the dates of adjournment in the aforesaid case before the learned Magistrate, Ahmedabad (Rural), the petitioner thought fit to produce any fresh evidence, documentary or oral in justification of his charges against the opponent No.2. SUBMISSIONS ON BEHALF OF THE REVISIONIST:
3 The principal argument on behalf of the Revisionist is that the learned Chief Judicial Magistrate committed a serious error in dismissing the complaint under Section 203 of the Cr.P.C. without taking cognizance upon the same. To put it in other words, according to Mr. Page 8 of 31 HC-NIC Page 8 of 31 Created On Fri Nov 06 03:00:20 IST 2015 R/CR.RA/444/2015 CAV JUDGMENT Koshti, the learned advocate appearing for the Revisionist, the learned Magistrate could have dismissed the complaint only after the magisterial or the police inquiry, as the case may be, under Section 202 of the Cr.P.C. The second argument of Mr. Koshti is that the learned Chief Judicial Magistrate failed to act in accordance with the provision of Section 210 (3) of the Cr.P.C. Mr. Koshti, placing reliance on the provision of Section 210(3) of the Cr.P.C., submitted that if the Magistrate does not take cognizance of any offence on the police report, then he is obliged to proceed with the inquiry or trial stayed by him, in accordance with the provisions of the Cr.P.C.
4 Mr. Koshti further submitted that the case put up by his client in the complaint was somewhat different than what was investigated by the police. Mr. Koshti lastly submitted that there is thumping evidence on record to prima facie indicate that the respondent No.2 on the date of the election had addressed the media and other people within the hundred meters radius of the polling booth. According to Mr. Koshti, the same was videographed, and there cannot be a better piece in that regard evidence than the video itself.
5 In such circumstances, he submitted that there being merit in the Revision Application, the same be allowed and the impugned order be quashed.
Page 9 of 31 HC-NIC Page 9 of 31 Created On Fri Nov 06 03:00:20 IST 2015 R/CR.RA/444/2015 CAV JUDGMENT 6 Mr. Koshti, in support of his submissions, placed reliance on the following decisions:
(1) Pramatha Nath Talukdar, Surendra Mohan Basu vs. Saroj Ranajn Sarkar [AIR 1962 Sc 876] (2) Abhinandan Jha vs. Dinesh Mishra [AIR 1968 SC 117] (3) H.S. Bais, Director, Small SavingcumDeputy Secretary Finance, Punjab Chandigarh vs. State (Union Territory of Chandigarh) [(1980) 4 SCC 631] (4) Ranvir Singh vs. State of Haryana [(2009) 9 SCC 642] (5) Poonam Chand Jain vs. Fazru [(2010) 2 SCC 631] (6) Kuldip Yadav vs. State of Bihar [(2011) 5 SCC 324] (7) Vasanti Dubey vs. State of Madhya Pradesh [(2012) 2 SCC 731] SUBMISSIONS ON BEHALF OF THE STATE OF GUJARAT:
7 Shri Kamal Trivedi, the learned Advocate General assisted by Mr. Mitesh Amin, the learned Public Prosecutor and Ms. Sangita K. Vishen, the learned Additional Public Prosecutor appearing for the State of Gujarat submitted that no error, not to speak of any error of law could be said to have been committed by the learned Chief Judicial Magistrate in passing the impugned order. Mr. Trivedi submitted that Section 210(3) of the Cr.P.C. has no application worth the name in the present case. According to Mr. Trivedi, it is not necessary that before dismissing the complaint under Section 203 of the Cr.P.C., the cognizance should Page 10 of 31 HC-NIC Page 10 of 31 Created On Fri Nov 06 03:00:20 IST 2015 R/CR.RA/444/2015 CAV JUDGMENT have been taken by the learned Magistrate. To put it in different words, the law does not envisage that the Magistrate, before dismissing a complaint, must direct an inquiry under Section 202 of the Cr.P.C. 8 Mr. Trivedi submitted that a very exhaustive and a detailed investigation was undertaken by the Investigating Officer of the D.C.P. Crime Branch, Ahmedabad. After a full fledged investigation, the final report under Section 173(2) of the Cr.P.C. was filed in the Court of the Additional Chief Metropolitan Magistrate, Court No.11, Ahmedabad, and vide order dated 22.08.2014, the learned Additional Chief Metropolitan Magistrate was pleased to accept and approve the final report filed by the Investigating Officer under Section 173(2) of the Cr.P.C. 9 Mr. Trivedi submitted that each and every aspect of the matter was considered, and at the end of the investigation, it was found that there was no substance worth the name in the allegations levelled against the respondent No.2.
10 In such circumstances referred to above, Mr. Trivedi submitted that there being no merit in this Revision Application, the same be rejected.
11 In support of his submissions, Mr. Trivedi placed reliance on the Page 11 of 31 HC-NIC Page 11 of 31 Created On Fri Nov 06 03:00:20 IST 2015 R/CR.RA/444/2015 CAV JUDGMENT following judgments:
(1) T.T. Antony vs. State of Kerala [(2001) 6 SCC 181] (2) Pramatha Nath Talukdar, Surendra Mohan Basu vs. Saroj Ranajn Sarkar [AIR 1962 Sc 876] (3) Amitbhai Anilchandra Shah vs. Central Bureau of Investigation [(2013) 6 SCC 348] (4) Anju Chaudhary vs. State of Uttar Pradesh [(2013) 6 SCC 384] (5) Babubhai vs. State of Gujarat and others [(2010) 12 SCC 254] ANALYSIS:
12 Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the learned Magistrate committed any error in passing the impugned order.
13 Let me first deal with the principal argument canvassed on behalf of the Revisionist as regards the dismissal of the complaint under Section 203 of the Cr.P.C., without there being any magisterial or police inquiry under Section 202 of the Cr.P.C.
14 Section 202 of the Cr.P.C. reads as under:
"202. Postponement of issue of process (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, a [and shall, in a case where the accused Page 12 of 31 HC-NIC Page 12 of 31 Created On Fri Nov 06 03:00:20 IST 2015 R/CR.RA/444/2015 CAV JUDGMENT is residing at a place beyond the area in which he exercises his jurisdiction,] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:Provided that no such direction for investigation shall be made,
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.
(2) In an inquiry under subsection (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under subsection (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant."
15 Section 203 of the Cr.P.C. provides for dismissal of complaint. It reads as under:
"203. Dismissal of complaint If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing."
16 Now, Sections 200 to 203 form a Chapter in themselves under the heading "Of complaints to Magistrates".This Chapter lays down the procedure to deal with the complaints lodged by private persons. Section Page 13 of 31 HC-NIC Page 13 of 31 Created On Fri Nov 06 03:00:20 IST 2015 R/CR.RA/444/2015 CAV JUDGMENT 200 provides that a Magistrate taking cognizance of an offence on complaint, shall at once examine the complainant and the witnesses present, if any, upon oath and the substance of the examination shall be reduced to writing and signed by the complainant and the witnesses and also by the Magistrate. It is clear that the object of the examination under Section 200 is to see that the members of public are not unnecessarily harassed by false and frivolous accusations. To avoid this mischief, the Magistrate, before he issues a process and summon a person accused of an offence, should satisfy himself of the truth or falsehood of the complaint and then see if the matter in the complaint requires inquiry by a Court of law. Section 200, however, talks about examination of the complainant and the witnesses who are present at the time when the Magistrate takes cognizance of an offence. 17 Section 202 appears to me to contain yet another check to prevent false and vexatious complaints being filed. That section makes it clear that a Magistrate is not bound to issue process immediately a complaint is filed before him, but where he has doubts about the truth of the complaint, it gives him power to postpone the issue of process if he thinks fit, either to inquire into the case himself or direct an inquiry to be made by a police officer or even by such other person as the Magistrate thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding.
Page 14 of 31 HC-NIC Page 14 of 31 Created On Fri Nov 06 03:00:20 IST 2015 R/CR.RA/444/2015 CAV JUDGMENT 18 Section 203 then provides that the Magistrate may dismiss a complaint if, after considering the statement on oath,if any, of the complainant and the witnesses and the result of the investigation or inquiry, if any, under S. 202, he finds that there is no sufficient ground for proceeding. In a case where he dismisses his complaint he has to record briefly the reasons for his so doing.
19 I am not impressed by the submission of Mr. Koshti that Section 203 of the Cr.P.C. requires that before the Magistrate dismisses the complaint, he is bound to examine the complainant and his witnesses on oath; he has to consider the evidence of the complainant and his witnesses along with the result of the inquiry ordered by him, and then, only he can dismiss the complaint. I do not find anything in Section 203 of the Cr.P.C., which would cast any duty upon the Magistrate to examine the witnesses on his own. Not only, this section, unlike Section 200 does not provide for any such examination, but the words "if any"
occurring therein negatives the contention urged by Mr. Koshti. The words "if any" under Section 203 obviously go with the words previously occurring in the section, that is, with the words "the statement on oath", and the words "statement on oath of the complainant and the witnesses"
can only refer to such statement taken either under Section 200 or Section 202, for section 203 does not provide for any examination either Page 15 of 31 HC-NIC Page 15 of 31 Created On Fri Nov 06 03:00:20 IST 2015 R/CR.RA/444/2015 CAV JUDGMENT of the complainant or witnesses.
20 Section 203 of the Cr.P.C., undoubtedly, confers wide powers on a Magistrate. The discretion given to him has, nonetheless, to be exercised judicially and although he has a power to order an inquiry, it is he who has to judicially decide whether to proceed or not. 21 My view is fortified by a decision of the Madras High Court in the case of Re Rajangam and another, petitioners [AIR 1958 Madras 523], Ramaswami, J. (as His Lordship then was), explained the fine distinction between the preamended code and amended code in regard to Section 203 of the Cr.P.C. I may quote the observations made by His Lordship contained in paras 8, 9, 10, 11 and 12 as under:
"8. In this connection my attention has been drawn to a decision obviously come to on a misapprehension and the attention of the learned Judge not being drawn to the distinction between preamended Code and the amended Code in regard to S. 203, viz., Chinna Konda Reddi v. Seshi Reddi, 1954 Mad WN 322: 1954 Mad WN Cr 86: (AIR 1954 Mad 889) (B). In that case Chandra Reddy, J. held that the prerequisite for taking action under S. 203 is an investigation or enquiry under S. 202 and therefore where there has been no investigation or inquiry under S. 202, it is incompetent for the Magistrate to act under S. 203. The key words in S. 203 are "the result of the investigation or inquiry if any under S. 202."
9. The words "if any" clearly show that this section empowers the Magistrate to dismiss a complaint without any investigation or inquiry under S. 202, if after examining the complainant he considers there is no sufficient reason for proceeding : Dukhiram Raut v. Jamuna Kuer, AIR 1925 Pat704 (C).
10. The words "if any" were omitted from the Code by the Amending Act 18 of 1923, but were restored to the Section by the Amending Act 2 of 1926. The reasons for reinsertion are given in the Statement of Objects and Reasons of the Amending Act of 1926 as follows :
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HC-NIC Page 16 of 31 Created On Fri Nov 06 03:00:20 IST 2015 R/CR.RA/444/2015 CAV JUDGMENT "The Calcutta High Court in a recent decision (in the case of Srishchandra Bose v. Madanlal Surma) has held that under S. 203, an investigation or an inquiry under S. 202 is necessary in all cases because the words 'if any' have been omitted from S. 203 after the words 'investigation or inquiry.' No such change was intended by the amendment made by Act XVIII of 1932 and the proposed addition is made to clear this matter."
11. Nowhere is it stated that a magistrate before dismissing a complaint must direct an investigation or inquiry, if any, under S. 202. In fact even if he had directed such an investigation to examine any witness or hold inquiry, the Magistrate is not bound after receipt of report of such investigation to examine any witness or hold inquiry before he dismisses the complaint.
It is sufficient if he takes into consideration the result of the investigation arrived at under S. 202. To sum up the scope of an inquiry under S. 202 is to separate unfounded from substantial cases at the outset and the provision is enabling and not obligatory and the enquiry is not intended to supersede a regular trial and it is not necessary that a magistrate shall call for an inquiry under S. 202. It is only when he thinks fit that he may do so.
12. The grounds of dismissal under S. 203 must of course be proper, viz, the magistrate should have been able to come to the conclusion that there is no sufficient ground for proceeding with the complaint. The expression 'sufficient ground' in this section points exclusively to the facts which the complainant brings to the knowledge of the magistrate to his establishing prima facie case against the accused.
In exercising this discretionary power of summary dismissal of complaint, a magistrate should not allow himself to be influenced by other considerations apart from the facts alleged by the complainant on oath and the result of the investigation or inquiry, if any, if it had been ordered under S. 202 Crl. P. C. The Magistrate cannot look into the other materials at this stage.
That is why the accused has no right at this stage to be heard or participate though there is nothing objectionable if the accused at his request is allowed to be present or even an advocate holding a watching brief for him is on request allowed to be present : Mustafa v. Motilal, 6 Cri LJ 85 (Bom) (D); Harnarain Halwai v. Kariman Ahir, AIR 1920 Pat 655 (E), RadhaKishun Sao v. S. K. Misra, AIR 1949 Pat 36 (F), Maung Ko v. Maung Set, AIR 1930 Rang. 226 (G); Naliappa Pillai v. Palaniandi, 1948 2 Mad LJ 358: 61 Mad LW 676: (AIR 1949 Mad 232) (H); Sheikh Akbar v. Prance, 12 Cri. LJ 207 (Cal) (I)."
Page 17 of 31 HC-NIC Page 17 of 31 Created On Fri Nov 06 03:00:20 IST 2015 R/CR.RA/444/2015 CAV JUDGMENT 22 I am also supported by a decision of the Kerala High Court in the case of Raju Puzhankara vs. State of Kerala [2008(3) Crimes (Kerala) 448]. A learned Single Judge observed in paras 3 and 4 as under:
"3. I am afraid that I cannot agree with the above submissions fully. No doubt, under Section 203 Cr.P.C. the Magistrate can dismiss the complaint only after taking cognizance of the offence. This much is clear from Section 203 itself which reads as follows:
"203. Dismissal of complaint If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing."
4. Thus, dismissal of a complaint under Section 203 Cr.P.C. can only be at the postcognizance stage. (See also Mohammed v. State of Kerala, 2001 2 KLT 48. But there is a power in every Magistrate to reject the complaint even at the precognizance stage if the complaint on the face of it does not make out the offence alleged in the complaint. In such a case, the law does not oblige Magistrate to proceed to Section 200 Cr.P.C. or the subsequent sections in Chapter XV of Cr.P.C. and thereby take cognizance of the alleged offence. In such a case, the Magistrate undoubtedly has the power to reject the complaint at the threshold. The decisions in Cref Finance Limited v. Sree Shanthi Homes (P) Ltd., 2005 7 SCC 467; Govind Mehta v. State of Bihar, 1971 AIR (SC) 1708 and Nagraj v. State of Mysore, 1964 AIR (SC) 269 would go to reinforce the said view. Although complaints are being dismissed by the Magistrates at the precognizance stage those dismissals are without noticing the real distinction between a dismissal of the complaint under Section 203 Cr.P.C. at the post cognizance stage and a rejection of the complaint under the precognizance stage. Hence such dismissals at the precognizance can only be treated as rejection of the complaint."
23 Although the decision of the Patna High Court has been referred to by the Madras High Court in the judgment referred to above, I deem it fit to quote the observations made by Justice Ross in the case of Dukhiram Raut (supra) as under:
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HC-NIC Page 18 of 31 Created On Fri Nov 06 03:00:20 IST 2015 R/CR.RA/444/2015 CAV JUDGMENT "In the second place it is contended that under the amended Cr. P.C. it is not open, to the Magistrate to dismiss a complaint in this way. The learned Vakil referred to the change that has been made in the language of Section 203 of the Code Under Section 202 of the Code a Magistrate on receipt of a complaint of an offence may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process, and either inquire into the case himself or in certain circumstances direct an enquiry or investigation to be made by a Magistrate subordinate to him or by a Police Officer or by such other person as he thinks fit. That section deals, with the postponement of the issue of process. Section 203 deals with the dismissal of a complaint. It enacts that the Magistrate may dismiss a complaint, if after considering the statement on oath, if any of the complainant and the result of any investigation or enquiry under Section 202, there is in his judgment no sufficient ground for proceeding, and in such a case he should briefly record his reasons for so doing. The learned Vakil contends that Section 203 is dependent upon Section 202. Prima facie I see no reason why the dismissal of a complaint should be necessarily dependent on the provisions for the postponement of the issue of process. But the argument is that whereas in the old Code the words were "the result, of the investigation, if any, made under Section 202" the words in the present Code are "the result of any investigation or enquiry under Section 202" and the inference is that an investigation or enquiry under Section 202 is now obligatory. There is, in my opinion, no substance in this argument. If the investigation or enquiry under Section 202 was obligatory then the words would have been "the investigation or enquiry under Section 202" but the words are "any investigation or enquiry under Section 202." The use of the word "any" clearly implies that an investigation or enquiry under Section 202 may or may not be made. In other words, the change is merely verbal and is not a change in substance."
24 I am also supported in my view by a decision of the Sikkim High Court in the case of Chabilal Gurung vs. Krishna Bahadur Gurung [1984 Cri. L. J. 1433], A.M. Bhattacharjee, Ag. C. J., observed in paras 5 and 6 as under:
"5. The learned Additional AdvocateGeneral has referred me to the decision of the Supreme Court in Nirmaljit v. State of West Bengal (AIR 1972 SC 2639) and has particularly drawn my attention to the observations (at p. 2646) that "where the complaint is presented before him, he can under S. 200 take cognizance of the offence made out therein and has then to examine the complainant and his witnesses" (emphasis added). And the learned counsel has urged that the Magistrate has to Page 19 of 31 HC-NIC Page 19 of 31 Created On Fri Nov 06 03:00:20 IST 2015 R/CR.RA/444/2015 CAV JUDGMENT examine the complainant then and then only when in the complaint some offence is "made out therein" and, therefore, if the allegations made in the complaint do not and cannot make any offence, there is no obligation on the part of the Magistrate to examine the complainant and he may then straightway dismiss the complaint. Relying further on the observations immediately following to the effect that "the object of such examination is to ascertain whether there is a prima facie case against the person accused of the offence in the complaint and to prevent issue of process on a complaint which is either false or vexatious or intended only to harass a person", and that "such examination is provided therefore to find out whether there is or not sufficient ground for proceeding", the learned Additional AdvocateGeneral reiterated that the object of such examination being to ascertain whether or not there is a prima facie case against the accused of the offence made out in the complaint, such examination would not at all be necessary and would rather be a fruitless exercise when the complaint discloses no offence at all, as in that case the question of ascertaining as to Whether there is any case, prima facie or otherwise, against the person complained against, would hardly , arise.
6. The observations of the Supreme Court in Vadilal Panchal v. Dattatraya (AIR 1960 SC 1113 at p. 1116) : (1960 Cri LJ 1499 at p. 1502) to the effect that "it is manifestly clear from the provisions of S. 203 that the judgment which the Magistrate has to form must be based on the statements of the complainant and his witnesses and the result of the investigation or inquiry" (emphasis added) might, at the first blush, suggest that examination of the complainant and consideration of his statements are conditions precedent to the dismissal of the complaint under S. 203. But to read so would be to misread the observations as they also referred in the same fashion to result of the investigation or inquiry also and it is trite that an inquiry or investigation under S. 202 is not at all obligatory but is to be made only if the concerned Magistrate thinks it fit to do so. That being so, all that was meant by those observations was that if such statements were there or any inquiry or investigation was made, the order of dismissal under S. 203 must be based on those materials and not that no order under S. 203 can at all be made without any such statement being recorded or any such inquiry or investigation being made. If the examination of the complainant before dismissing his complaint is obligatory, then the words "if any" within parenthesis in the expression "after considering the statement on oath (if any) of the complainant" would be absolutely meaningless and otiose. And such a view would also make the law on the point rather unreasonable because in that case a Magistrate, even if he has clearly realised that the complaint in writing presented to him is all rubbish and is not worth the paper written upon, would still have to proceed to examine the complainant, as if to perform some obligatory but useless ritual and then only to dismiss the complaint. True, there are good number of decisions holding that a Magistrate cannot dismiss a complaint under S. 203 until he has Page 20 of 31 HC-NIC Page 20 of 31 Created On Fri Nov 06 03:00:20 IST 2015 R/CR.RA/444/2015 CAV JUDGMENT examined the complainant and the citations on the point in most of the leading commentaries on the Code of Criminal Procedure (e.g., the AIR Commentaries on the Code of Criminal Procedure, 1973, Vol. 2, page
513) begin with the old Full Bench decision of the Bombay High Court in re Ganesh Narayan (1889 ILR 13 Bom 590 at p. 597), of the old Division Bench decisions of the Calcutta High Court in Satya Charan v. Chairman, Uttarpara Municipality (18993 Cal WN 17), and in Lokenath Patra v.
Sanyasi Charan (1903 ILR 30 Cal 923 at p. 925) and include a number of other decisions. But it must be noted that S. 203 of the Code of Criminal Procedure, until it was amended in 1923, expressly provided that "the Magistrate may dismiss the complaint if, after examining the complainant and considering the result of the investigation (if any) made under S. 202, there is in his judgment no sufficient ground for proceeding". Therefore, under the provisions of S. 203, as it stood before the amendment of 1923, the words "if any" within brackets qualified the investigation under S. 202, but the expression "after examining the complainant" was not qualified by any such or similar words and accordingly, it had to be held in the decisions thereunder that a complaint cannot be dismissed without examining the complainant. But the deliberate insertion of the words "if any" within brackets qualifying the expression the "statement on oath of the complainant", which has also been retained almost totidem verbis in S. 203 of the new Code of Criminal Procedure of 1973, would go to show that such statement on oath of the complainant is not necessarily a must before a complaint can be dismissed under S. 203 of the Code. Be it noted that in Sikkim we are still governed by the Code of Criminal Procedure, 1898."
25 In view of the above discussion of the case law, the principal argument of Mr. Kosthi fails and is hereby rejected. 26 I am also not impressed by the submission of Mr. Koshti that his client should have been given an opportunity to adduce the necessary evidence to show that the final report filed by the Investigating Officer under Section 173(2) of the Cr.P.C. in connection with the offence registered with the D.C.B. Police Station, Ahmedabad city being IIC.R. No.3045 of 2014 was wrong or incorrect. I am of the view that giving permission to challenge the report or adduce the counter evidence is not Page 21 of 31 HC-NIC Page 21 of 31 Created On Fri Nov 06 03:00:20 IST 2015 R/CR.RA/444/2015 CAV JUDGMENT only warranted by Sections 202 and 203, but would negative the very purpose of those sections. I may clarify that in the case in hand, there is no report of the police pursuant to any order of the police inquiry under Section 202 of the Cr.P.C. Even if there would have been one pursuant to the police inquiry under Section 202 of the Cr.P.C., then the argument of Mr. Kosthi must fail.
27 I am supported by a Division Bench decision of the Madras High Court in the case of Nalliappa Pillai v. Palaniandi [AIR 1949 Madras 232]. Justice Govinda Menon dissented from the view taken by Devadoss J., in Maccarthy's case [AIR 1928 Madras 135] and held in para 3 as under:
"It is not obligatory upon the Magistrate before whom the complaint is made or to whom it has been transferred, to given an opportunity to the complainant to show that the report of the police enquiry is wrong. Section 203 does not impose such a duty. All that the Magistrate has to do is to consider the statement on oath, if any, of the complainant as well as the result of the investigation or enquiry under S.202, Criminal P.C., before he dismisses the complaint. Nowhere is it stated a Magistrate who has referred a complaint for enquiry should, after receipt of the police report, give an opportunity to the complainant to adduce evidence to show that the report of the police is wrong or incorrect. If the view of the learned Sessions Judge is to be accepted, then it makes the provisions of S. 203, Criminal P.C., much wider than it is expressly stated."
28 I am also not impressed by the submission of Mr. Koshti as regards the applicability of the provision of Section 210(3) of the Cr.P.C. In my view, Section 210 has no application in the present case. Section 210 of the Cr.P.C. lays down the procedure to be followed when there is a Page 22 of 31 HC-NIC Page 22 of 31 Created On Fri Nov 06 03:00:20 IST 2015 R/CR.RA/444/2015 CAV JUDGMENT complaint case and police investigation in respect of the same offence. In fact, the very invocation of Section 210 of the Cr.P.C. by the learned Magistrate was wrong. The date on which the learned Magistrate passed an order purported to be under Section 210 of the Cr.P.C., there was no inquiry pending before it. This aspect has been dealt with by me at length in the case Rilesh Batukbhai Beladia v. State of Gujarat and other [Special Criminal Application No.1936 of 2015 decided on 22.09.2015].
"10...Section 210 requires procedure to be followed when there is a complaint case and police investigation in respect of the same offence and reads thus:
"210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence. (1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.
(2) If a report is made by the investigating police officer under Section 173 and on such report cognizance of any offence to taken by the Magistrate against any person who an accused in the complaint case, the Magistrate shall inquire together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.
(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him in accordance with the provision of this code."
11 The bare reading of the above provision makes it clear that during an inquiry or trial relating to a complaint case, if it is brought to the Page 23 of 31 HC-NIC Page 23 of 31 Created On Fri Nov 06 03:00:20 IST 2015 R/CR.RA/444/2015 CAV JUDGMENT 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 the record of the police officer conducting the investigation.
12 The object of enacting Section 210 of the Code is three fold:
(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.
13 The Joint Committee of Parliament 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) 14 It is thus clear that before Section 210 can be invoked, the 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. 15 I may only say that mere calling for the papers of the police investigation or the report of the police, the learned Magistrate could not Page 24 of 31 HC-NIC Page 24 of 31 Created On Fri Nov 06 03:00:20 IST 2015 R/CR.RA/444/2015 CAV JUDGMENT be said said to have applied his mind in order to find out whether cognizance should be taken or not. It is preposterous to suggest that calling for the report of the police under Section 210 of the Cr. P.C. would amount to taking cognizance of the offence on the complaint of the complainant. In Section 210 of the Code, the words "during the course of inquiry or trial held by him" are very significant.
* * *
25 In the case in hand, the learned Magistrate on receipt of the
complaint considered the averments made in the complaint and the documents attached with the complaint, and thereafter, thought fit to pass an order under Section 210 since it came to the notice of the Magistrate that the police was also looking into the same allegations pursuant to the complaint lodged by the complaint in writing addressed to the police. Thus, on 23.11.2013, when such order was passed, there was no inquiry or trial pending before the Magistrate."
29 Therefore, it is difficult for me to appreciate the contention of Mr. Kosthi that having ignored the final report filed by the Investigating Officer under Section 173(2) of the Cr.P.C. and having not taken cognizance of any offence on any police report, the Magistrate should have proceeded with the inquiry or trial.
30 I take notice of the fact that the final report under Section 173(2) is very exhaustive and the Investigating Officer has taken pains to take care of each and every aspect of the matter. The report is running in about 80 pages. In the report, each of the offence as alleged and its ingredients have been considered along with the evidence oral as well as documentary collected in the course of the inquiry. I may quote some of the observations as contained in the final report as under:
"4. Ocular and documentary evidence collected during course of Page 25 of 31 HC-NIC Page 25 of 31 Created On Fri Nov 06 03:00:20 IST 2015 R/CR.RA/444/2015 CAV JUDGMENT investigation does not reveal that the acts of commission or omission alleged to have been committed by Shri Narendra Modi, formerly Chief Minister of Gujarat, after casting his vote at Nishan Vidhyalaya Polling Station satisfy the requirements of section 130 of Representation of Peoples Act1951, section 171F of IPC. Although, both these sections does not form part of the First Information Report filed by Shri H A Rathod, Police InspectorDCB PS, in interest of justice evidence and material collected during course of investigation of offence registered DCB PS vide II CR No.3045/2014 is evaluated in respect of these sections.
Section 130 of Representation of Peoples, Act, 1951 reads as under:
"130. Prohibition of canvassing in or near polling stations.-- (1) No person shall, on the date or dates on which a poll is taken at any polling station, commit any of the following acts within the polling station or in any public or private place within a distance of 1[one the following acts within the polling station or in any public or private place within a distance of 1[one hundred metres] of the polling station, namely:--
(a) canvassing for votes; or
(b) soliciting the vote of any elector; or
(c) persuading any elector not to vote for any particular candidate; or
(d) persuading any elector not to vote at the election; or
(e) exhibiting any notice or sign (other than an official notice) relating to the election.
(2) Any person who contravenes the provisions of subsection (1) shall be punishable with fine which may extend to two hundred and fifty rupees.
(3) An offence punishable under this section shall be cognizable."
Here, the panchnama of the scene of offence which was prepared as shown by Shri KD Champavat clearly measures the distance between the place from Shri Narendra Modi interacted with press representatives and the white line demarcating 100 meter perimeter of polling station as being 8 meters. It is at the skating rink that Shri Narendra Modi dfisplayed the "white coloured lotus" symbol in his hand. Video recordings of the incident collected during course of investigation shows that Shri Narendra Modi interacted with media outside the 100 meter perimeter marking polling area neighborhood. Similarly, the video evidence clearly reveal that Shri Narendra Modi did not show the "white coloured lotus" symbol in 'polling area neighborhood'. There is absolutely no evidence (both in the nature of oral and documentary evidence) suggesting that Shri Narendra Modi was holding and/or displaying "white coloured lotus" symbol in his hand Page 26 of 31 HC-NIC Page 26 of 31 Created On Fri Nov 06 03:00:20 IST 2015 R/CR.RA/444/2015 CAV JUDGMENT within "polling area neighborhood' of 100 meter perimeter of polling station.
Further, section 171F of Indian Penal Code, 1860 reads as under:
"171F. Punishment for undue influence or personation at an election Whoever commits the offence of undue influence or personation at an election shall be punished with imprisonment of either description for a term which may extend to one year or with fine, or with both."
Here, undue influenced has been defined in section 171C of Indian Penal Code. Hon'ble Supreme Court has observed in Shiv Kirpal Singh vs. Shri V.V. Giri (Equivalent citations : 1970 AIR 2097, 1971 SCR (2) 197) that "the language in the definition of "undue influence" implies that an offence of undue will be held to have been committed if the elector, having made up his mind to caste a vote for a particular candidate, does not do so because of the act of the offender, and this case only be if he is under a threat or fear of some adverse consequence. Whenever any threat of adverse consequence is given, it tend to divert the elector from freely exercising his electoral right by voting for the candidate chosen by him for the purpose". The act of omission or commission alleged to have been committed by Shri Narendra Modi does not, exfacie, satisfy the criteria of 'undue influence' in section 171C of IPC, and therefore, he cannot be charged under penal section 171F of IPC.
5. In view of what has been stated hereinabove in the preceding paragraphs and upon an overall consideration of the entire evidence gathered during the course of investigation pertaining to DCB PS Cr No. 3045/2014, the undersigned has reasons to believe that none of the offences as alleged to have been stated in the complaint, have been committed by any person either named or unnamed. After having conducted a thorough, indepth and extensive investigation and upon an overall evaluation of the evidence gathered into the matter, the undersigned is of the firm opinion that offence punishable u/s 126(1)(a) and 126(1)(b) of the Representation of People's Act and Sec. 188 of the Indian Penal Code as alleged in the complaint submitted by Shri H A Rathod and registered at DCB Police Station vide II CR No. 3045/2014, or any other section of law, have not been committed by any person on 30.4.2014 and hence, this final report is being forwarded to this Hon'ble Court.
6. PRAYER:
In view of the aforesaid conclusion/findings arrived at, it is earnestly prayed to this Hon'ble Court that the final report as filed u/s 173(2) of Page 27 of 31 HC-NIC Page 27 of 31 Created On Fri Nov 06 03:00:20 IST 2015 R/CR.RA/444/2015 CAV JUDGMENT the Code of Criminal Procedure, 1973 filed in connection with FIR being DCB OS II CR No. 3045/2014 may kindly be accepted and further necessary order(s) in accordance with law may kindly be passed."
31 The learned Additional Chief Metropolitan Magistrate, Court No.11, Ahmedabad considered the report referred to above and accepted the same observing as under:
"13) Investigating Officer has also submitted the video recording and the transcripts of the broadcast by various news channels which were requisitioned and obtained from the office of District Election Office, Ahedabad. Perusal of these recordings does not provide any materials in the support of the allegations laid down in the complaint.
14) Hon'ble High Court of Gujarat in the case of the State of Gujarat vs. Martandrai Gangashankar Shastry ((1965) 6 GLR 497) held that when the charge of holding a public meeting in contravention of section 126(1)(a) of Representation of Peoples Act 1951 is framed against an accused person, the prosecution must prove three things: (1) that the accused held a public meeting (2) that the meeting was a public one and (3) that what was held was a meeting. Holding a public meeting is different from attending it. It was further held in the abovementioned judgment that in order to prove what was held is a meeting the prosecution must adduce satisfactory evidence, and if thousands of persons assemble at random it cannot be called a meeting. Hon'ble High Court of Gujarat has further observed that if taking advantage of the large number of persons present at the place a person addresses them, it cannot be said to be a meeting.
(15) In view of the facts stated hereinabove and the ratio laid by Hon'ble High Court of Gujarat in abovementioned judgment, the impromptu press interaction by Shri Narendra Modi cannot be considered by any means to be 'public meeting' in view of section 126(1)(a) of Representation of Peoples Act 1951. Further, I agree with the conclusion dawn by the Investigating Officer that the broadcast of the media interaction of Shri Narendra Modi on 30.4.14 by various news channels throughout the country, the tonetenor and language used by Shri Modi in the said media interaction and the display of "white lotus' symbol by Shri Modi do not come with the ambit of display of "election matter" as envisaged under Sec. 126(1)(b) of the Representation of People's Act.
(16) With regard to violation of notification of Commissioner of Police Ahmedabad City dated 07.04.2014 regarding prohibition of assembly of more than four persons at a place and alleged offence under Section 188 of Page 28 of 31 HC-NIC Page 28 of 31 Created On Fri Nov 06 03:00:20 IST 2015 R/CR.RA/444/2015 CAV JUDGMENT IPC, perusal of the statements of senior police officers viz. Shri Manoj Agrawal, JCPSector II, Shri Mahedra Bagaria, DCP ZoneII, and Shri Virendra Yadav, DCP ZoneI clearly indicate that there arose to occasion during the entire sequence of events, starting from Shri Modi arriving at the polling station and ending at Shri Modi leaving the polling station, which gave them a reasonable belief for initiating action u/s 188 IPC. In fact all these senior officers in their respective statements have categorically stated that the persons assembled near the polling station as also the media representatives inside the skating rink never intended or acted in any manner which satisfied the necessary ingredients of Se. 188 IPC. Therefore, the necessary ingredients for an act of omission or commission to form an offence under section 188 IPC are not even prima facie satisfied, and therefore I agree with the conclusion drawn by the Investigating Officer that no offence is made out against any individual present near Nishan Vidyalaya on the morning of 30.04.2014 under section 188 of IPC.
(17) Investigating Officer has recorded statements of polling officers deployed on duty at various polling booths in Nishan Vidyalya Police Station Polling Station for LokSabha Elections2014. Also, panchnama of the place from where Shri Narendra Modi had interacted with press reporters was drawn and relevant documents were collected. Perusal of statements of witnesses, including the polling officials, common public, pressreporters and police officers, clearly shows that Shri Narendra Modi did not display 'white coloured lotus' inside the prohibited area of 100 meter perimeter along the polling station. Shri Baldevbhai Ratnabhai Rabari and other polling officials had clearly stated that the a white coloured line was drawn to demarcate the 100 meter perimeter of polling station, and Shri Modi was not carrying any lotus symbol inside the polling booth. Further, panchnama and statements of witnesses shows that place of pressinteraction of Shri Modi was outside the 100 meter line demarcating the 'polling area neighbourhood'. Records produced before this Court does not reveal any material necessary for taking cognisance against any accused person under any penal section of law. Investigation carried out by the Investigating Officer is just and proper, and require no interference by this Court. There is no reason to disagree with the Final Report, and it should be allowed. Further, after detailed consideration and perusal of the records produced before this Court, proceedings against the alleged persons should be dropped, and hence I pass the following order in the interest of justice.
ORDER Prayer of the Investigating Officer is allowed.
It is hereby ordered that the Final Report (Closure Report) by the Investigating Officer, under section 173(2) of the Cr.P.C., filed before this Page 29 of 31 HC-NIC Page 29 of 31 Created On Fri Nov 06 03:00:20 IST 2015 R/CR.RA/444/2015 CAV JUDGMENT Court on 08.08.2014 in connection with the F.I.R. registered at D.C.B. Police Station, Ahmedabad City vide II CR No.3045/2014 be accepted, and proceedings of this matter be dropped."
32 In view of the aforesaid discussion, it is not necessary for me to look into the case law relied upon by the learned Advocate General appearing for the State of Gujarat. I may only say that the ratio as propounded in the judgment relied upon by the learned Advocate General is that the Court should examine the facts and circumstances giving rise to both the F.I.Rs. and the test of sameness should be applied to find out whether both the F.I.Rs. relate to the same incident in respect of the same occurrence or are in regard to the incidents which are two or more parts of the same transaction. If the answer is in the affirmative, the second F.I.R. is liable to be quashed. However, in case, the contrary is proved, where the version in the second F.I.R. is different and they are in respect of the two different incidents/crimes, the second F.I.R. is permissible. Applying the test of sameness, as explained by the Supreme Court, the complaint lodged by the Revisionist was rightly dismissed by the learned Magistrate.
33 I have also gone through the case law relied upon by Mr. Koshti, the learned advocate appearing for the Revisionist. In my view, none of the judgments relied upon by Mr. Kosthi has any application to the case in hand. None of his submissions could be said to be fortified, in any manner, by the case law relied upon.
Page 30 of 31 HC-NIC Page 30 of 31 Created On Fri Nov 06 03:00:20 IST 2015 R/CR.RA/444/2015 CAV JUDGMENT 34 I find merit in the submissions of the learned Advocate General appearing for the State that after the learned Magistrate passed the order dated 22.08.2014 accepting the final report, thereby dropping the proceedings of the F.I.R. registered at the D.C.B. Police Station, Ahmedabad City, the petitioner obtained a copy of the final report preferring an application under Section 91 of the Cr.P.C. i.e. Exhibit: 9 for production of all the statements, documents, etc, referred to in the final closure report. The learned Magistrate, Ahmedabad (Rural) passed an order rejecting the application Exhibit: 9 referred to above. The said order was passed on 14.11.2014. On none of the dates of adjournment in the case before the learned Magistrate which were not less than 12 in numbers, the Revisionist herein thought fit to produce any fresh evidence, documentary or oral in support of his charges against the respondent No.2.
35 In the aforesaid view of the matter, I hold that the impugned order does not suffer from any error, not to speak of any error of law. 36 In the result, this Revision Application fails and is hereby rejected.
(J.B.PARDIWALA, J.) chandresh Page 31 of 31 HC-NIC Page 31 of 31 Created On Fri Nov 06 03:00:20 IST 2015