Patel Vs. Kesarben Jesangji & Ors.  INSC 1624 (23 September 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1509 OF 2008
(Arising out of (SLP (Crl.) No.6328 of 2008) Ketankumar Babulal Patel
....Appellants Versus Kesarben Jesangji and Ors. ....Respondents (With Criminal
Appeal No. 1510 /2008@SLP (Crl.) 6331/2008)
Dr. ARIJIT PASAYAT,
these appeals challenge is to the judgment of a learned Single Judge of the
Gujarat High Court disposing of several petitions. By the impugned judgment in
each case the High Court inter alia directed as follows:
"In the result,
the petition is allowed. Order dated 11.4.2008 passed by the Judicial
Magistrate, First Class, Ahmedabad (Rural) in Criminal Complaint No.103 of 2008
is quashed and set aside. Inquiry under Section 156(3) of the Code is ordered.
Complaint be registered as an FIR by the officer in charge of the concerned
Police Station for the offences disclosed in the complaint.
Rule is made
facts in a nutshell are as follows:
A complaint alleging
commission of offences punishable under Sections 406, 420, 465, 467, 468 and
120B of the Indian Penal Code, 1860 (in short the `IPC') was filed before the
learned Judicial Magistrate, First Class, Ahmedabad (Rural) which was numbered
as Criminal Case No.103 of 2008. The basis of the complaint was that on
29.3.2008 the petitioners in Special Criminal Application No.1060 of 2008
approached the District Superintendent of Police, Ahmadabad requesting him to
exercise powers under Section 154 (3) of the Code of Criminal Procedure, 1973
(in short the `Code'). But they were advised to approach the police station and
assurance was given that they shall get justice. Thereafter, complaint was
filed on 29.3.2008 before the Sarkhej Police Station but the same was not
accepted. It was alleged that the respondents in the complaint were politically
very influential persons and were prominent builders and hence police did not
accept the complaint. It was also stated that the District Superintendent of
Police instead of helping them to give justice informed the respondent no.1 in
the complaint about the said complaint on telephone and did not initiate action
against the said respondent as he was a sitting member of the Legislative
Assembly and belonged to the ruling party. It was highlighted that if the
records of the telephones and mobiles of District Superintendent of Police and
the Police Inspector are called for, it will become crystal clear that such
communications were there. The scripts of the talks between the concerned
officials and respondent No.1 have to be called for from the mobile companies.
An order was passed earlier in Special Criminal Application No.918 of 2007. The
Judicial Magistrate, Ist Class passed an order contrary to it by directing as
is sent to Sarkhej Police for inquiry and report under Section 202 of Cr. P.C.
Declared in open Court."
After having held
that there exists prima facie offence and connectivity of the accused with it,
which is also referred to by the Collector in his order, requisite order was to
be passed. Several other factual details were also referred to.
counsel for the appellants in each case submitted that the course adopted by
the High Court is impermissible. It is submitted that once the cognizance has
been taken, the procedure in terms of Section 156(3) of the Code cannot be
resorted to. It has to be in terms of Sections 202 and 204 of the Code. It is
also submitted that once the Magistrate held that a prima facie offence was
made out whether it was right or wrong, the only course available was issuance
of process which has been directed. But the High Court overlooking that aspect
has again directed that modality under Section 156(3) to be adopted. It is
pointed out that reasons have been given as to why it was felt necessary to
have resort to Section 156(3).
counsel for the respondents on the other hand with reference to Section 202 of
the Code submitted that action was in order. After hearing learned counsel for
the parties and analyzing the legal position with reference to various
decisions the impugned order was passed.
counsel for the respondents further submitted that the High Court had the
jurisdiction available and has directed inquiry to be conducted. The trial
Court could have directed the action under Section 156(3) to be taken. The High
Court has acted in accordance with law in directing that Section 156 (3)
procedure was to be followed.
reference to the order passed by the Collector vis-a- vis the power of attorney
which forms the subject matter of controversy, it is submitted that records
cannot be produced by the private respondents to substantiate the accusations.
If the investigation is undertaken by the police, it can certainly take custody
of the records and produce to the court as and when necessary.
is submitted that the Magistrate had three courses open. Once the complaint is
filed, it can even after finding that prima facie case exists direct
investigation. Secondly, if no offence was made out, to close the proceeding
and thirdly to take cognizance. In the instant case, the trial Court adopted
the first course available.
Minu Kumari and Anr. v. State of Bihar and Ors.
(2006 (4) SCC 359)
the position was highlighted as follows:
"16. When the
information is laid with the Police, but no action in that behalf is taken, the
complainant is given power under Section 190 read with Section 200 of the Code
to lay the complaint 6 before the Magistrate having jurisdiction to take
cognizance of the offence and the Magistrate is required to enquire into the
complaint as provided in Chapter XV of the Code. In case the Magistrate after
recording evidence finds a prima facie case, instead of issuing process to the
accused, he is empowered to direct the police concerned to investigate into
offence under Chapter XII of the Code and to submit a report. If he finds that
the complaint does not disclose any offence to take further action, he is
empowered to dismiss the complaint under Section 203 of the Code. In case he
finds that the complaint/evidence recorded prima facie discloses an offence, he
is empowered to take cognizance of the offence and would issue process to the
accused. These aspects have been highlighted by this Court in All India
Institute of Medical Sciences Employees' Union (Reg.) through its President v.
Union of India and others (1996 (11) SCC 582). It was specifically observed
that a writ petition in such cases is not to be entertained.
17. The above
position was highlighted in Gangadhar Janardan Mhatre v. State of Maharashtra
and Ors. (2004 (7) SCC 768)."
is not clear from the order of the trial Court as to which of the alternatives,
i.e. the first category or the third category was being resorted to. That would
have enabled the High Court to decide as to whether the report could be made
under Section 156(3) of the Code. Since the order of the trial Court is not
very clear and the High Court has not dealt with this aspect, we deem it proper
to remit the matter to the trial Court to decide the matter afresh
expeditiously in the light of what has been stated in para 16 of Minu Kumari's
case (supra). It is made clear that we have not expressed any opinion in that
appeals are disposed of.
(Dr. ARIJIT PASAYAT)