Manmohandas Gururamlaxmandasji ... vs State Of Gujarat
2021 Latest Caselaw 12822 Guj

    R/SCR.A/329/2014                              ORDER DATED: 31/08/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CRIMINAL APPLICATION NO. 329 of 2014

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    MANMOHANDAS GURURAMLAXMANDASJI MAHANT & 1 other(s)
                        Versus
              STATE OF GUJARAT & 1 other(s)
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Appearance:
MR BB NAIK, SR. ADVOCATE WITH MR PARTHIV A BHATT(5331) for the
Applicant(s) No. 1,2
MR M.H.M. SHAIKH FOR MS RATNA VORA(2251) for the Respondent(s)
No. 2
MR HK PATEL, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                             Date : 31/08/2021

                              ORAL ORDER

Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of the respondent no.1-State. Learned advocate Mr. M. H. M. Shaikh for Ms. Ratna Vora waives service of notice of rule for and on behalf of the respondent no.2.

By filing present petition, the petitioners have sought the following reliefs.

"(A) Your Lordships may be pleased to admit and allow this petition;

(B) Your Lordships may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the judgment and order dated 29.11.2013 passed by learned 3 rd Additional Sessions

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Judge, Ankleshwar in Criminal Revision Application No. 27 of 2013 as well as order dated 15.02.2010 passed by the learned Judicial Magistrate First Class, Jhagadia issuing process against the petitioners for the offence punishable under Sections 143, 147, 148, 149, 452, 504, 506(2) read with Section 114 of the Indian Penal Code.

(C) Your Lordships may be pleased to grant any other and further reliefs as may be deemed fit and proper in the interest of justice."

Heard learned advocates for the respective parties as well as learned APP for the respondent-State.

Learned advocate appearing for the petitioners has submitted that the judgment and order dated 29.11.2013 passed by learned 3rd Additional Sessions Judge, Ankleshwar in Criminal Revision Application No. 27 of 2013 as well as order dated 15.02.2010 passed by the learned Judicial Magistrate First Class, Jhagadia issuing process against the petitioners for the offence punishable under Sections 143, 147, 148, 149, 452, 504, 506(2) read with Section 114 of the Indian Penal Code are completely illegal and erroneous. That, initially learned Magistrate, after hearing the complainant, complaint was sent to the Police Officer for investigation under Section 202 of the Code of Criminal Procedure (in short "the Code") on 20th August 2007 and inquiry report was submitted by the Police Officer on 6th October 2007, and thereafter, hearing the

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complainant, the learned Magistrate passed an order to issue process against the present petitioners and refused to issue process against the accused nos. 8 to 10 under Section 203 of the Indian Penal Code. That, learned Magistrate recorded the verification of the complainant on 19th February 2010 which ought to have recorded under Section 200 of the Code before directing the inquiry by the Police Officer under Section 202 of the Code, and therefore, apparently mandatory procedure prescribed by the court, more particularly, Sections 190, 200 and 202 of the Code were not followed by the learned Magistrate. That, present petitioners approached the learned Sessions Court, Bharuch by filing Criminal Revision Application No. 30 of 2012, which was renumbered as Criminal Revision Application No. 27 of 2013 against the order dated 19th February 2010 issuing process against the petitioners, which was also accordingly dismissed by the learned 3rd Additional Sessions Judge, Ankleshwar. That, order passed by the learned Magistrate, Jhagadia straightaway directing the Circle Inspector, Ankleshwar to inquire into the complaint under Section 202 of the Code is illegal and violating the mandatory provisions of the Code. That, before taking cognizance of any offence by the learned Magistrate, under Section 200 of the Code, Magistrate has to examine upon oath the complainant and witnesses, if any, and the

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substance of such examination shall be reduced in writing. If Magistrate is not satisfied about the prima facie case, then he can direct investigation to be made by the Police Officer, as he thinks it. That, after receipt of the report, learned Magistrate either can dismiss the complaint under Section 203 of the Code and if he is not satisfied about the prima facie offence or issue process if he satisfied that there is a prima facie case under Section 204 of the Code. That, in the instance case, learned Magistrate without recording the statement of the complainant and his witnesses on oath, straightway directed the Circle Police Inspector to inquire into the matter and submit the report. After submitting the report, he decided to issue process under Section 204 of the Code, and thereafter, recorded the verification. That the statement of the complainant, which was required to be recorded under Section 200 of the Code, on 19 th February 2010. That, learned Magistrate has not followed the mandatory provisions of the Code. That, order of the learned Magistrate of issuing process against the petitioners is contrary to the provisions of the Code and wrongly confirmed by the learned Additional Sessions Judge in dismissing the revision application filed by the petitioners. That, no case is made out against the petitioners. That, the witnesses cited by the respondent no.2 are not eye witnesses to the alleged breaking upon of the law and taking away the goods from the premises.

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That, the trial court has completely ignored the submissions of the Police Officer, who conducted the inquiry regarding the application of the independent witnesses and has committed an error by passing the impugned order to issue process against the petitioners. That, complainant failed to succeed in civil proceedings up to the High Court and he falsely filed the criminal complaint against the petitioners. In support of his arguments, learned advocate for the petitioners has placed his reliance on the following judgments:

1. 1976 (3) SCC 252, Devararpalli L. Reddy v. V. Narayana Reddy & Ors.

2. 2013(5) SCC 615, Madhao and Ors. V. State of Maharashtra Ors.

3. 2012(2) SCC 731, Vasanti Dubey v. State of Madhya Pradesh

4. (2009) 1 SCC 407, National Small Industries Corporation Limited versus State (NCT of Delhi) and Others Hence, it was requested by learned advocate for the petitioners to quash and set aside the impugned judgment and order dated 29.11.2013 passed by learned 3rd Additional Sessions Judge, Ankleshwar in Criminal Revision Application No. 27 of 2013 as well as order dated 15.02.2010 passed by the learned Judicial Magistrate First Class, Jhagadia issuing

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process against the petitioners for the offence punishable under Sections 143, 147, 148, 149, 452, 504, 506(2) read with Section 114 of the Indian Penal Code.

Learned APP for the respondent no.1-State as well as learned advocate for the respondent no.2 have vehemently opposed the arguments advanced by learned advocate for the petitioners and submitted that it is the duty of the learned Magistrate to see under Section 202 of the Code whether there is a sufficient ground of issuing process or not. That, learned Magistrate is empowered to investigate the offence under Section 202 of the Code while taking cognizance of the ofence. That, no irregularity is committed by the learned Magistrate issuing process against the present petitioners as well as by the learned Sessions Court rejecting the Criminal Revision Application preferred by the present petitioners. That, sufficient ground was found by the learned Magistrate for issuing process against the accused persons by taking cognizance of the offence. That, the statement of the complainant was recorded by the court by considering the evidence of the complainant and sufficient material as available before the learned Magistrate in issuing the process. That, learned JMFC as well as learned Sessions Judge have discussed in detail about the evidence of the complainant, and thereafter, found prima facie case against the present

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petitioners involving in the offence. That, learned Magistrate as well as learned Sessions Judge have rightly issued the process and confirmed the order perusing the evidence of the complainant. That, there is no illegality or error committed by the court below and this court may not interfere in the impugned orders. Hence, it was requested by learned APP for the respondent no.1-State as well as learned advocate for the respondent no.2 to dismiss the present petition.

Having heard learned advocates appearing for the respective parties as well as learned APP for the respondent No.1-State, to arrive at correct conclusion of this petition, the factual aspect of the dispute between the parties requires to be considered. It appears from the record that the dispute between the parties is relating to a temple named "Gumandev Temple" situated at Gumandev, village Nana Sanja, Taluka Jhagadia, District Bharuch. One Ramlaxmandasji Guru Damodardasji was the Mahant of the said temple and was owner of the certain properties situated at Gumandev, Village Nana Sanja. The original complainant-respondent no.2 filed one Regular Civil Suit No. 61 of 2004 before the court of learned Civil Judge(J.D.), Jhagadia against the petitioner no.1. It was claimed by the complainant that aforesaid temple and other properties were sold to him by Ramlaxmandasji Guru Damodardasji (hereinafter referred to as "the Mahant") by

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registered sale deed dated 23rd April 2003 for consideration of Rs. 75,000/- and possession of the said property was handed over to him. In the complaint, it was alleged by him that he was serving with the Gujarat Electricity Board at Bhuj and though he had given an application for transferring the said property in his name to the Panchayat, the Panchayat has not accepted to enter his name as an owner in the panchayat record. It was further alleged in the complaint that on 13 th August 2004, at about 8.00 a.m., when he was at his house, petitioner no.1 asked him to vacate the said four premises otherwise the petitioner no.1 would take possession forcibly, and therefore, complainant filed a Civil Suit against the petitioners for the protection of the possession of the above said properties. A declaration was sought in the suit to the effect that above referred four properties were purchased by the complainant by registered sale deed dated 24th March 2013 and he is the owner of the said property and he is in possession. It was further prayed that the petitioner no.1 has no right, title or interest in the suit property and he should not enter into or disturb the possession by himself or his agents and servants and to restrain from doing so. In the said suit, complainant also submitted one application Exh. 5 with a prayer to grant interim relief restraining the petitioners and his servants and agents from disturbing or interfering with his

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possession pending hearing and final disposal of the suit. As the suit was not triable by learned Civil Judge (J.D.), it was transferred to the court of learned Civil Judge (S.D.) Ankleshwar and same was renumbered as Special Civil Suit No. 218 of 2004. An application for interim injunction Exh. 5 was heard by the court and dismissed it vide order dated 19 th April 2005. Thereafter, Gujarat Civil Court Act 2005 came into force and said suit was transferred again to the court of learned Principal Civil Judge, Jhagadia and renumbered as Regular Civil Suit No. 47 of 2006. The petitioners, meanwhile, filed Regular Civil Suit No. 8 of 2005 before the learned Civil Judge (J.D.), Jhagadia for cancellation of the sale deed claimed to have been executed by the Mahant in favour of the respondent no.2 on 29th January 2005. The complainant, being dissatisfied with the order dated 19 th April 2005 passed by the learned 3rd Joint Civil Judge (S.D.), Ankleshwar, preferred Misc. Civil Appeal No. 15 of 2006 after limitation period was over, and therefore, the condonation of delay application was also filed, which was granted and appeal was entertained by the District Court. In the said Appeal preferred by the complainant, an Application Exh. 4 for interim relief was sought. Learned Additional District Judge, Fast Track Court No. 6, Bharuch vide order dated 26th June 2007 decided the application Exh. 4 allowing the said application granting

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interim relief in favour of the complainant/respondent no.2 against the petitioner no.1. The present petitioner no.1 prayed vide application Exh. 22 for stay of the said order so as to enable him to approach this Court. The lower appellate court, vide order dated 26th June 2007, stayed the order dated 26 th June 2007 till 25th July 2007. The petitioners approached this Court against the order passed below application Exh.4 in Misc. Civil Appeal No. 15 of 2006 preferred by the respondent no.2 by filing Special Civil Application No. 19751 of 2007. This court, on 8th August 2007, was pleased to issue notice. Meanwhile, as the respondent no.2 was tried to disturb the possession of the property in dispute, petitioners had filed Civil Application (for Stay) No. 11215 of 2007 before this court.

It appears that on 27th August 2007, this Court was pleased to direct the parties to maintain status-quo and said order of status-quo was continued and ultimately, vide order dated 9th January 2008, this Court issued rule in the main matter and directed to maintain status quo order passed by this court in Civil Application No. 11215 of 2007 in Special Civil Application No. 19751 of 2007 on 27 th August 2007 by both the parties during the pendency of the main petition. The respondent no.2, to create evidence, filed an application for breach of injunction before the trial Court under Rule 2A Order 39 of the Code. In the said application dated 9 th August

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2007, it was alleged that the petitioners have entered into the premises by breaking open the lock and took possession in violation of the order passed by lower appellate court. Special Civil Application No. 1975 of 2007 was finally heard by this Court and vide order dated 3rd November 2012, it was allowed by quashing and setting aside the order dated 26 th June 2007 passed by the learned 3rd Joint District Judge and Fast Track Court No.6, Bharuch below application Exh. 4 in Misc. Civil Appeal No. 15 of 2006 in favour of the respondent no.2.

This Court further directed to dispose of the main appeal being Misc. Civil Appeal No. 15 of 2006 as early as possible preferably within a period of three months from the date of receipt of the order in respect of breach of injunction application filed by the respondent no.2 on 18th August 2007. This court further directed to deposit an amount of Rs. 75,000/- with interest at the rate of 8% p.a. from the date of execution of sale deed till 30.11.2012 on or before 31.12.2012. As per the averments made by petitioner no.1, he has also deposited the said amount before the trial Court. It also appears that in the Regular Civil Suit No. 47 of 2006, respondent no.2 passed a purshish below Exhibit 29 and 33 to try the application for breach of injunction with the main suit by framing an issue in that behalf and the said purshish was accepted by the trial Court. Necessary issue No. 4(1) was also

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framed by the trial court in the suit. It appears that though the civil proceedings were pending before the trial court and respondent no.2 has not succeed in proving his possession of the premises with a view to pressurize the petitioner No.1, he filed the impugned criminal complaint before the court of learned JMFC, Jhagadia against the petitioner no.1 and 10 other persons on 10th August 2007. The said complaint was registered as preliminary inquiry No. 20 of 2007 wherein it was alleged that the complainant has purchased the suit property from the Mahant by registered sale deed. If we consider the document of verifying the complaint by the respondent no.2, prima facie, it appears that he was not able to succeed in the civil proceedings against the petitioners before the Civil Court, he has filed impugned complaint against 10 persons including the present petitioners. It appears that in the preliminary inquiry no. 20 of 2007, learned Magistrate has passed order below application Ex. 1 on 15th February 2010 issuing process against the accused nos. 1 to 7 for the offence punishable under Sections 143, 147, 148, 149, 452, 504, 506(2) read with Section 114 of the Indian Penal Code. Under Section 204 of the Code, the complaint was dismissed against the accused Nos. 8 to 10 and under Section 204 of the Code, the entire complaint was dismissed for the offence punishable under Sections 379 and 500(2) of the IPC. Before passing final

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order, in last paragraph, learned Judge has observed that the predecessor in time, at the time of filing complaint, no verification of the complainant was recorded, which can be treated as irregularity, and therefore, such irregularity committed by his predecessor, is required to be corrected. Thereafter, in the final order, in paragraph 2, he further ordered that the complainant shall remain present and come to record his statement for verification, and thereafter, registering the complaint, summons shall be issued on fixing the process fees.

Before registering the complaint by the learned JMFC and issuing process, the predecessor in time, learned JMFC passed an order as "read the complaint and heard the complainant".

Considering the complaint, it was not found proper to issue summons/process. Before taking cognizance against the accused, it was necessary to inquire whether sufficient evidence is available or not. As there were some allegations against the local police, it was ordered to forward this complaint under Section 202 of the Code to the Circle Police Inspector, Ankleshwar. It was directed to inquire by the said police officer under Section 202 of the Code and submit the report, this order was passed on 10th August 2007 and subsequent order was passed on 15 th February 2010 means after two and half years approximately.

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Section 200 and 202 of the Code can be read as under: Section 200: A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:

Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-

(a) if a public servant acting or- purporting to act in the discharge of his official duties or a Court has made the complaint; or

(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192:

Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re- examine them.

Section 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, 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:

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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 sub- section (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 sub- section (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.

Hon'ble Apex Court in case of Devararpalli L. Reddy v. V. Narayana Reddy & Ors. reported in 1976 (3) SCC 252, in para 14, has observed that:

"Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under s. 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within

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the meaning of s. 190(l)(a). If, instead of proceeding under Chapter XV, he has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under s. 156(3), he cannot be said to have taken cognizance of any offence."

Hon'ble Apex Court in Madhao and Ors. V. State of Maharashtra Ors. reported in 2013(5) SCC 615, in para 18, has observed that:

"When a magistrate receives a complaint he is not bound to take cognizance if the facts alleged in the complaint disclose the commission of an offence. The magistrate has discretion in the matter. If on a reading of the complaint, he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence itself. As said earlier, in the case of a complaint regarding the commission of cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)

(a). However, if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to revert back to the pre-cognizance stage and avail of Section

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156(3)."

Hon'ble Apex Court in case of Vasanti Dubey v. State of Madhya Pradesh reported in 2012(2) SCC 731, in para 24, has observed that:

"In short, on receipt of a complaint, the magistrate is not bound to take cognizance but he can without taking cognizance direct investigation by the police under Section 156(3) of Cr.P.C. Once, however, he takes cognizance he must examine the complainant and his witnesses under Section 200. Thereafter, if he requires police investigation or judicial enquiry, he must proceed under Section 202. But in any case he cannot direct the Police to straightaway file charge-sheet which needs to be highlighted as this point is often missed by the Magistrates in spite of a series of decisions of this Court including the case of Abhinandan Jha (supra) and Ram Naresh Prasad (supra) referred to hereinbefore"

Here also as observed by this Court that after reading a complaint and hearing the complainant, the learned JMFC was of the opinion that it was not proper to issue summons or process against the accused. It was further of the opinion that it was necessary to inquire whether sufficient evidence is available to take cognizance against the accused. As certain allegations were made against the local police, and therefore, it was directed to Circle Police Inspector, Ankleshwar to make inquiry under Section 202 of the Code and submit a report.

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Subsequently, while issuing the process against the present petitioners and other co-accused on 15th February 2010 by learned JMFC, Jhagadia, he also observed that verification of the complainant was not recorded while filing the complaint by his predecessor and it was an irregularity, which was required to be corrected at this stage, and therefore, he passed further order directing the complainant to remain present and record his statement before the court for verification.

Hon'ble Apex Court has clarified this position observing that once the learned Magistrate took cognizance, he may examine the complainant and his witnesses under Section 200 of the Code, and thereafter, if he requires police investigation or judicial inquiry, he must proceed under Section 202 of the Code. But, in any case, he cannot direct the police to straightaway file chargesheet, which needs to be highlighted as this point is often missed by the Magistrates in spite of a series of decisions Hon'ble Apex Court including the case of Abhinandan Jha versus Dinesh Mishra reported in (1967) 3 SCR 668 and Ram Naresh Prasad versus State of Jharkhand reported in (2009) 3 SCC (Cri.) 1336.

Without examining the complaint and its witnesses, order passed by the learned JMFC dated 10 th August 2007 directing the Circle Police Inspector, Ankleshwar to inquire under Section 202 of the Code is prima facie illegal and invalid

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as well as subsequent order dated 15th February 2010 passed by the learned JMFC, Jhagadia calling the complainant to remain present before the court and record his statement for verification taking cognizance of the offence and issuing process.

Hon'ble Apex Court in case of "National Small Industries Corporation Limited versus State (NCT of Delhi) and Others" reported in (2009) 1 SCC 407 has also found mandatory to examine the complainant and the witnesses to find out whether there are sufficient grounds for proceeding against the accused and to prevent issue of process on complaints which are false or vexatious. Hon'ble Apex Court, in para 12 of such judgment, has observed as under:

"12. The object of section 200 of the Code requiring the complainant and witnesses to be examined, is to find out whether there are sufficient grounds for proceeding against the accused and to prevent issue of process on complaints which are false or vexatious or intended to harass the persons arrayed as accused. (See: Nirmaljit Singh Hoon vs. The State of West Bengal - 1973 (3) SCC 753). Where the complainant is a public servant or court, clause (a) of proviso to section 200 of the Code raises an implied statutory presumption that the complaint has been made responsibly and bona fide and not falsely or vexatiously. On account of such implied presumption, where the complainant is a public servant, the statute exempts examination of the

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complainant and the witnesses, before issuing process."

For the reasons recorded as above, present petition is accordingly allowed.

The judgment and order dated 29.11.2013 passed by learned 3rd Additional Sessions Judge, Ankleshwar in Criminal Revision Application No. 27 of 2013 as well as order dated 15.02.2010 passed by the learned Judicial Magistrate First Class, Jhagadia issuing process against the petitioners for the offence punishable under Sections 143, 147, 148, 149, 452, 504, 506(2) read with Section 114 of the Indian Penal Code are quashed and set aside.

Rule is made absolute to the aforesaid extent.

(B.N. KARIA, J) K. S. DARJI