NEUTRAL CITATION
R/CR.MA/8757/2012 ORDER DATED: 18/08/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 8757 of 2012
==========================================================
AJAYKUMAR BHADOO IAS COMMISSIONER & 2 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MR HRIDAY BUCH(2372) for the Applicant(s) No. 1,2,3
MR P P MAJMUDAR(5284) for the Respondent(s) No. 2
MR SP MAJMUDAR(3456) for the Respondent(s) No. 2
MR TIRTHRAJ PANDYA, APP for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2
==========================================================
CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 18/08/2023
ORAL ORDER
1. The present Criminal Misc.Application under section 482 of the Code of Criminal Procedure, 1973 has been preferred by the applicants herein - original accused to quash and set aside the impugned complaint being Criminal Inquiry No.268 of 2012 lodged by the respondent No.2 and further prayed to quash all the proceedings initiated pursuant to the said complaint including the impugned order dated 22.5.2012 passed by the learned 2 nd Additional Chief Judicial Magistrate, Rajkot.
Page 1 of 8 Downloaded on : Sun Sep 17 01:43:15 IST 2023
NEUTRAL CITATION R/CR.MA/8757/2012 ORDER DATED: 18/08/2023 undefined
2. Facts leading to filing of the present petition in nut-shell are as under-
2.1 The respondent No.2 herein - original complainant filed the complaint being Criminal Inquiry Case No.268 of 2012 against the original accused in the court of the learned Chief Judicial Magistrate, Rajkot for the offences punishable under Sections 166, 167, 201 and 114 of the Indian Penal Code 1860. It appears that without recording verification of the respondent No.2 - original complainant on oath and without following any procedure as required under Section 200 of the CrPC, the learned Magistrate passed an order dated 22.5.2012 directing to hold police inquiry under Section 202 of the CrPC.
3. Being aggrieved and dissatisfied with the order passed by the learned Magistrate dated 22.5.2012 in Criminal Inquiry Case No.268 of 2012, the applicants - original accused preferred the present Criminal Misc. Application before this Court.
Page 2 of 8 Downloaded on : Sun Sep 17 01:43:15 IST 2023
NEUTRAL CITATION R/CR.MA/8757/2012 ORDER DATED: 18/08/2023 undefined
4. Learned advocate Mr.Hriday Buch appearing on behalf of the applicants - original accused has vehemently submitted that the learned Magistrate has materially erred in passing the impugned order as the learned Magistrate has not recorded verification of the complainant before taking cognizance and initiating inquiry vide the impugned order.
4.1 Learned advocate Mr.Buch has further submitted that as the complainant was not examined on oath and his verification was not recorded on oath, the complaint as a whole was required to be quashed and consequently, the impugned order is required to be quashed and set aside.
5. On the other hand, learned advocate Mr.P.P.Majmudar has opposed the present application. At this stage, relying upon the decision of this Court in the case of Ramanbhai Zanzarbhai Ghanghar Vs State of Gujarat, reported in 2012(0) AIJEL-HC 226712, Page 3 of 8 Downloaded on : Sun Sep 17 01:43:15 IST 2023 NEUTRAL CITATION R/CR.MA/8757/2012 ORDER DATED: 18/08/2023 undefined Mr.Majmudar has fairly submitted that at the most if the learned Magistrate has taken cognizance and process is issued on the complaint without recording the verification of the complainant, the order of issuing process can be quashed and set aside and the matter can be remanded to the learned Magistrate for completing the procedure as required under Section 200 of the CrPC and the learned Magistrate may be directed to record the verification of the complainant on oath and thereafter proceed further with the complaint in accordance with law and on merits.
6. Shri Tirthraj Pandya, learned Additional Public Prosecutor appearing on behalf of the State is also not in a position to dispute that even in a case where the learned Magistrate has taken cognizance of the offence without recording the verification of complainant on oath as required under Sec. 200 of the CrPC, the complaint cannot be quashed on that ground and at the most the order issuing process can be quashed and set aside. Therefore, it is requested to pass appropriate order considering the facts Page 4 of 8 Downloaded on : Sun Sep 17 01:43:15 IST 2023 NEUTRAL CITATION R/CR.MA/8757/2012 ORDER DATED: 18/08/2023 undefined and circumstances of the case.
7. Heard learned Advocates appearing for respective parties at length. At the outset it is required to be noted that the respondent No.2 - original complainant has instituted the complaint in the court of the learned Chief Judicial Magistrate against the applicants - original accused wherein the learned Magistrate has passed the order on 22.5.2012 without examining the complainant on oath and without recording his verification on oath. At this stage, it would be fruitful to mention here the observations made in the judgment cited by learned advocate Mr.Majmudar appearing for the complainant which read as under.
"15.2 Now, so far as the observation made by the Revisional Court that as there was no verification of the complainant on oath as required under Sec. 200 of the CrPC and therefore, the learned Magistrate was not justified in ordering inquiry under Sec. 202 of the CrPC and therefore, even Page 5 of 8 Downloaded on : Sun Sep 17 01:43:15 IST 2023 NEUTRAL CITATION R/CR.MA/8757/2012 ORDER DATED: 18/08/2023 undefined otherwise the complaint deserves to be quashed and set aside is concerned, it is required to be noted that on the ground that the complainant was not examined on oath and/or verification of the complainant was not recorded on the complaint, the complaint as a whole cannot be quashed and set aside. At the most if the learned Magistrate has taken the cognizance and issued the process and/or has passed any order for inquiry under Sec 202 of the CrPC in a complaint without recording the verification of the complainant, in that case the order passed by the learned Magistrate taking cognizance is required to be quashed and set aside and the matter is to be remanded to the learned Magistrate from the stage of verification. Under the circumstances, to that extent the observation made by the learned Revisional Court cannot be sustained. The view which is being taken by this Court is supported by the decision of this Court in the case of Page 6 of 8 Downloaded on : Sun Sep 17 01:43:15 IST 2023 NEUTRAL CITATION R/CR.MA/8757/2012 ORDER DATED: 18/08/2023 undefined Anupam N. Chaudhary (Supra) and the decision of the Bombay High Court in the case of M/s. Nova Electricals, Jalgaon (Supra). It is observed in the aforesaid decision that the verification of the complainant as required under Sec. 200 of the CrPC is not a mere formality and the Magistrate has to ascertain thereby whether the complaint is genuine or frivolous. It is further held that for omission by the Court to record verification, the complainant cannot be penalized for it and on that ground the complaint cannot be quashed. The proper course is to quash the order issuing process and the trial Court is to proceed further from the stage of verification.]"
8. In view of the above and for the reasons stated above, the application is allowed. The impugned order dated 22.5.2012 passed by the learned 2nd Additional Chief Judicial Magistrate, Rajkot in Criminal Inquiry Case No.268 of 2012 is hereby quashed and set aside and the matter is Page 7 of 8 Downloaded on : Sun Sep 17 01:43:15 IST 2023 NEUTRAL CITATION R/CR.MA/8757/2012 ORDER DATED: 18/08/2023 undefined remanded to the learned Magistrate for considering the said complaint in accordance with law and on merits and after following due procedure as required under section 200 of the CrPC and to proceed from the stage of verification. The aforesaid exercise shall be completed within a period of six weeks from the date of receipt of the present order. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(S. V. PINTO,J) H.M. PATHAN Page 8 of 8 Downloaded on : Sun Sep 17 01:43:15 IST 2023