Gujarat High Court
Madhubhai Ratnabhai Nakum vs State Of Gujarat on 8 July, 2025
NEUTRAL CITATION
R/SCR.A/843/2014 ORDER DATED: 08/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 843 of 2014
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MADHUBHAI RATNABHAI NAKUM
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR PREMAL S RACHH(3297) for the Applicant(s) No. 1
MR TIRTHRAJ PANDYA, APP for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 08/07/2025
ORAL ORDER
1. Challenge in this petition is order passed below 1 in Criminal Inquiry No. 169 of 2011, whereby, learned Trial Court concerned in 3 line order directed to register complaint as FIR under section 156(3) of Cr.P.C.
2. Heard learned advocates for the parties. Report tendered by learned APP is taken on record.
3. Allegations levelled against the petitioner is for the offence under sections 324, 325, 329, 331, 506, 364, 426, 427, 114 and 120B of IPC.
4. Factual assertion made in the petition is that the petitioner was working as PSI in Panchkoshi B Division Police Station, Jamnagar at the relevant time. The police has provided protection to the concerned person to remove illegal Page 1 of 4 Uploaded by SATISH C. VEMULLA(HC00206) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 22:09:03 IST 2025 NEUTRAL CITATION R/SCR.A/843/2014 ORDER DATED: 08/07/2025 undefined encroachment made by complainant pursuant to complaint made by Dhananatbhai D. Chavda.
5. In recent judgment, in the case of Om Prakash Ambadkhar v/s. State of Mahrashtra [AIR 2025 SC 970], the Hon'ble Apex Court noted prerequisites to be followed by complainant before approaching learned Magistrate under section 156(3). Relevant para 24 and 25 of the said judgment reads as under :-
"24.Thus, there are prerequisites to be followed by the complainant before approaching the Magistrate under Section 156(3) of the Cr.P.C. which is a discretionary remedy as the provision proceeds with the word 'may'. The Magistrate is required to exercise his mind while doing so. He should pass orders only if he is satisfied that the information reveals commission of cognizable offences and also about the necessity of police investigation for digging out of evidence neither in possession of the complainant nor can be procured without the assistance of the police. It is, thus, not necessary that in every case where a complaint has been filed under Section 200 of the Cr.P.C. the Magistrate should direct the Police to investigate the crime merely because an application has also been filed under Section 156(3) of the Cr.P.C. even though the evidence to be led by the complainant is in his possession or can be produced by summoning witnesses, with the assistance of the court or otherwise. The issue of jurisdiction also becomes important at that stage and cannot be ignored.
25.In fact, the Magistrate ought to direct investigation by the police only where the assistance of the Investigating Agency is necessary and the Court feels that the cause of justice is likely to suffer in the absence of investigation by the police. The Magistrate is not expected to mechanically direct investigation by the police without first examining whether in the facts and circumstances of the case, investigation by the State machinery is actually required or not. If the allegations made in the complaint are simple, Page 2 of 4 Uploaded by SATISH C. VEMULLA(HC00206) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 22:09:03 IST 2025 NEUTRAL CITATION R/SCR.A/843/2014 ORDER DATED: 08/07/2025 undefined where the Court can straightaway proceed to conduct the trial, the Magistrate is expected to record evidence and proceed further in the matter, instead of passing the buck to the Police under Section 156(3) of the Cr.P.C. Ofcourse, if the allegations made in the complaint require complex and complicated investigation which cannot be undertaken without active assistance and expertise of the State machinery, it would only be appropriate for the Magistrate to direct investigation by the police authorities. The Magistrate is, therefore, not supposed to act merely as a Post Office and needs to adopt a judicial approach while considering an application seeking investigation by the Police."
6. In the present case, it is to be noted that learned Magistrate without applying mind in three line cursory order directed to register FIR. The impugned order is capricious and without application of mind and also antithetical to the prerequisites stated by Hon'ble Apex Court in the aforesaid judgment. One more glaring aspect which is appearing in the matter is that FIR is filed against the petitioner who was government servant at the relevant time. Therefore, learned Trial Court is also required to examine whether alleged act is followed under his duty or in excess of his duty and whether for prosecution sanction under section 197 is required or not.
7. In view of above, without delving into merits of the case, this Court finds fit to quash questioned order and remand the matter to be decided afresh. Accordingly, impugned order dated 25.07.2011 passed by learned Trial Court in Criminal Inquiry No.169 of 2011 and all consequential proceedings initiated in pursuance thereof are hereby quashed and set aside. Learned Trial Court concerned to decide the Criminal Inquiry No.169 of Page 3 of 4 Uploaded by SATISH C. VEMULLA(HC00206) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 22:09:03 IST 2025 NEUTRAL CITATION R/SCR.A/843/2014 ORDER DATED: 08/07/2025 undefined 2011 afresh in accordance with law considering prerequisites stated in aforesaid judgment of Hon'ble Apex Court as early as possible preferably within eight weeks from the date of receipt of present order.
8. The application is accordingly allowed. Rule is made absolute. Direct service is permitted.
(J. C. DOSHI,J) SATISH Page 4 of 4 Uploaded by SATISH C. VEMULLA(HC00206) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 22:09:03 IST 2025