Gujarat High Court

Rafiq Ajitbhai Theba vs State Of Gujarat on 25 June, 2021

Bench: Gita Gopi

     R/SCR.A/889/2019                           JUDGMENT DATED: 25/06/2021




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/SPECIAL CRIMINAL APPLICATION NO. 889 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE GITA GOPI

=============================================

1     Whether Reporters of Local Papers may be
      allowed to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

=============================================
                         RAFIQ AJITBHAI THEBA
                                Versus
                          STATE OF GUJARAT
=============================================
Appearance:
MS ROOPAL R PATEL(1360) for the Applicant(s) No. 1
 for the Respondent(s) No. 10
MR SANJAY PRAJAPATI(3227) for the Respondent(s) No.
2,3,4,5,6,7,8
NOTICE SERVED BY DS(5) for the Respondent(s) No. 9
MS MONALI BHATT APP for the Respondent(s) No. 1
=============================================

CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                           Date : 25/06/2021

                           ORAL JUDGMENT

1. Rule. Learned advocates waive service of notice

of Rule on behalf of the respective parties. With the

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consent of the parties, the matter is heard finally today.

2. This petition has been filed under Article 226

and 227 of the Constitution of India as well as Section

482 of the Code of Criminal Procedure with a prayer to

peruse the legality and validity of the judgment and order

dated 02.04.2018 passed by the Judicial Magistrate, First

Class, Tankara and order passed by the Sessions Judge,

Morbi on 01.11.2018 in Criminal Revision Application

No.19/2018; with further prayer to declare the same as

illegal, unjust, arbitrary, suffers from the vice of non

application of mind, exceeding in jurisdiction, so as to

have partly allowed the Criminal Inquiry; with the prayer

to direct the learned Judicial Magistrate to issue

summons under Section 365, 506(2), 161, 165A of IPC

and under the provisions of Money Lending Act; further

prayer is also made to direct the Judicial Magistrate to

issue summons against the accused no.9 who is

respondent no.10 in the present matter.

3. It is the case of the petitioner that, he is doing

agricultural work for maintaining his family. In order to

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purchase fertilizer and seeds for carrying out cultivation,

the petitioner was in need of money. Therefore, three

years ago he had borrowed Rs.1,00,000/- at 1% interest

from respondent no.3. It is stated by the petitioner that

he had repaid this amount along with interest, still

however, respondent no.3 kept on demanding 10%

interest from the petitioner and was threatening him.

3.1 It is contended by the petitioner that to get rid

of the threat he borrowed money from respondent nos.4

and 6. It is stated that though the money was borrowed at

a decided rate of 1%; however, respondent nos.2 to 9

demanded back the money at 10% interest. It is alleged

by the petitioner that respondent nos.2 to 9 without any

license have continued their illegal business of money

lending and have extracted ten times more than the

principal amount from many villagers of Mitana village.

3.2 The petitioner states that he was passing

nearby Takdir Valkanizing Shop situated at Morbi Rajkot

Road on his motorcycle on 20.02.2018 at 8:00 O' clock in

the night. At that time, the respondent nos.2 to 9 in

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connivance with each-other armed with baseball, pipe

etc, came in Scorpio Car, started abusing him and

demanded 10 times interest amount, beaten the

petitioner with pipe and damaged the motorcycle,

Sohilbhai owner of puncture shop is a witness to that

incident. It is alleged that thereafter he was kidnapped in

a Car from Mitana which stopped at about 2 kms. away

from Mitana, in a forest area. However, the petitioner

taking advantage of the darkness, ran away from the

place towards the road and took lift in a truck, as he was

under fear, he went to Ajmer Dargah.

3.3 Petitioner also states that he has recorded the

threats given by the respondent no.2 on his phone. The

memory card was produced before the lower Court. The

petitioner states that his brother Nijubhai had sent a

written complaint dated 21.02.2018 to the respondent

no.10 alleging facts of illegal demand of 10% interest,

and, his brother informed the police about petitioner

being kidnapped and his whereabouts being not known,

expressing apprehension that his brother was no more.

The petitioner states that as no action was taken by

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respondent no.10 on the complaint dated 21.02.2018 of

his brother, it was sent on 01.03.2018 to the Judicial

Magistrate, First Class, Morbi, D.S.P., Dist. Morbi, C.P.I.

Vakner, M.L.A. Tankara, Home Minister Gandhinagar,

Chief Minister Gandhinagar and requested the authorities

to do the needful. The petitioner has stated that

respondent no.10 had come to take the statement of his

wife Ruksanaben and it is alleged that respondent no.10

threatened and pressurized his wife to withdraw the

complaint.

3.4 Further stated that, in reference to complaint

dated 21.02.2018 and 01.03.2018, the brother of the

petitioner had requested the Hon'ble Governor vide his

letter dated 14.03.2018 to do the needful and to protect

them from harassment.

3.5 The petitioner states that after mustering

courage, he returned from Ajmer and ultimately lodged

Criminal Case being Criminal Inquiry No.2 of 2018 before

the learned Judicial Magistrate, First Class, Tankara

under Sections 323, 365, 427, 504, 506(2), 114, 116 and

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165-A of the I.P.C. read with Money Lending Act against

the respondent nos.2 to 10. In Criminal Inquiry No.2 of

2018, his witnesses are Sohil Hussainbhai (puncture

repairer), brother - Nijubhai, wife of the petitioner -

Rukshanaben. He had produced documentary evidences

in the nature of the complaint dated 21.02.2018, memory

card wherein recording had been made qua the threats

administered by the respondent no.10, who had

pressurized the uncle of the petitioner - Hussainbhai to

withdraw the complaint, and even Photographs

evidencing the damage caused to the Motor cycle of the

petitioner.

3.6 Petitioner stated that taking into consideration

the contents of the complaint, documents and electronic

record in the form of memory card, learned J.M.F.C.

directed to register the said complaint as Criminal

Inquiry and further directed to take the verification of the

petitioner vide order dated 26.03.2018 and on verification

the matter was adjourned for orders. On 02.04.2018, the

learned J.M.F.C. partly allowed the said Criminal Inquiry

holding the prima facie case against respondent nos.2 to

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9 under Sections 323, 427, 504 and 114 of IPC and

directed to register the complaint and further to issue

summons for the said offences against the respondent

nos.2 to 9, returnable on 30.04.2018.

3.7 The petitioner has recorded dissatisfaction

towards the order, contending that the learned lower

Court has not issued summons qua Sections 365, 506(2),

161 and 165-A of the I.P.C. and under the provisions of

Money Lending Act and has not directed to issue

summons against the respondent no.10.

3.8 Being aggrieved by the said order dated

02.04.2018 of the J.M.F.C., Tankara, the petitioner

preferred Special Criminal Application No.3184 of 2018

before this Court, which was withdrawn vide order dated

19.04.2018, wherein liberty was granted to the petitioner

to file appropriate proceedings before the competent

Court.

3.9 It is stated by the petitioner that consequent to

the said order, the petitioner preferred Criminal Revision

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Application No.19 of 2018 before the learned District &

Sessions Judge, Morbi. After hearing the parties and

going through the record of the case, learned District &

Sessions Judge vide judgment and order dated

01.11.2018 rejected the Revision Application of the

petitioner.

3.10 The petitioner being aggrieved and dissatisfied

by the judgment and order of the courts below, has

invoked writ jurisdiction of this Court and the inherent

jurisdiction under Criminal Procedure Code.

4. Learned advocate Ms. Roopal R.Patel, taking

this Court to the observations made by learned Judicial

Magistrate, First Class in its judgment and order dated

02.04.2018 and the judgment of the learned Sessions

Judge, Morbi in Criminal Revision Application No.18/2018

dated 01.11.2018, submitted that the learned Magistrate

under Section 200 of Cr.P.C. took the cognizance of the

offence on complaint, on examining the complainant on

oath and the witnesses present and recorded the

substance of the examination of the complainant and

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witnesses. Ms. Patel submits that once cognizance of an

offence has been taken, then the learned Magistrate

ought to have ordered for the issuance of summons

towards all the sections which had been averred and

alleged by the complainant. Ms. Patel, submits that as per

the provision of Section 202 of Cr.P.C., the learned

Magistrate has to inquire on his own or could have given

directions for investigation by the police officer for the

purpose of deciding whether or not there is sufficient

ground for proceeding. She submitted that the scope of

inquiry is limited to ascertain the prima facie case that

the learned Magistrate, in the instant case, appreciated

and interpreted the evidence as if he was conducting the

trial. Ms. Patel, submitted that the learned Magistrate

has travelled beyond his jurisdiction by passing the order

dated 02.04.2018 and has erred in partly allowing

criminal inquiry rather should have allowed the complaint

in toto.

5. Ms. Patel further submits that, to come to the

conclusion that demand of money was made from the

complainant, the learned Magistrate minutely examined

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the case, verified the electronic records and photographs

of the motorcycle and for to further prima facie conclude

that the complainant had taken loan, the learned J.M.F.C.

accepted the electronic record as prima facie evidence.

Learned advocate submitted that from the conversation

recorded, the learned Magistrate ought to have come to

an opinion that the threats were given to the petitioner,

and thus has committed error in interpreting the

conversation by his own, by simultaneously ignoring the

version of the complaint along with documents and

statements of the witnesses, wherein it was categorically

alleged that respondent no.2 in connivance with the other

respondents, have threatened the petitioner. As such, the

learned Magistrate has committed illegality in not issuing

summons under Section 506 of the I.P.C. Ms. Patel

contended that the learned Magistrate has also erred in

not considering the complaint under Money Lending Act,

the order suffers illegality since the summons were not

issued under the alleged offence of Money Lending Act.

6. Ms. Patel further stated that the learned

Magistrate has also gravely erred in not issuing summons

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under Section 365 and merely on presumption has

observed that the act of petitioner reaching Ajmer is

doubtful and thus have erred in not considering the case

of kidnapping and abduction against the respondents. The

electronic version substantiate the money demand so

much so the threat and the fact of kidnapping. She

further submitted that the learned Magistrate ought to

have verified the electronic version through F.S.L. Ms.

Patel submitted that the analysis of the electronic

evidence at the primary stage, is not permissible by law.

Three successive complaint by the brother of the

petitioner proves that respondent no.10 had not taken

any steps to trace out the petitioner. Therefore,

exonerating the respondent no.10 under section 161 and

165-A of the I.P.C. is totally erroneous. Ms. Patel

contended that no relief ought to have been granted to

respondent no.10 i.e. police officer.

7. Ms. Monali Bhatt, learned APP for the

respondent State, defending the order passed by the

Judicial Magistrate, First Class, Tankara and order

passed by the Sessions Judge, Morbi on 01.11.2018 in

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Criminal Revision Application No.19/2018, submitted that

the learned Magistrate under the scope of Section 200 of

Cr.P.C. and the provisions of Section 202, has rightly

come to the conclusion of issuance of summons under

Sections 323, 427, 504 and 114 of IPC against the

respondent nos.1 to 8. Ms. Bhatt further submitted that

the respondent no.10 is the Police Sub-inspector of

Tankara Police Station, who has no role to play towards

the inquiry made by the learned J.M.F.C. in connection to

the private complaint filed by the petitioner. Ms. Monali

Bhatt, learned APP, further submitted that the learned

Magistrate has given the reasons for non issuance of the

process against the respondent no.10, the police officer,

and there is no illegality or infirmity in the order. The

learned Judge has observed the evidence to come to

prima facie satisfaction for issuance of summons against

the respondent nos.1 to 9.

8. Learend APP, Ms. Bhatt, submits that the

learned Sessions Judge's order dated 01.11.2018, is

within the scope of revisional powers under Section 397

read with Section 401 of the Cr.P.C., and that no

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extraordinary case has been made to show that there is

any abuse of process of any Court or there is any

requirement of invoking the inherent powers of this

Court, as the inquiry by the Magistrate is in consonance

with the provisions of law, ample opportunity was granted

to the petitioner to produce his evidence for inquiry

under Section 202 of the Cr.P.C. Ms. Bhatt contended

that the inherent power under Section 482 of Cr.P.C. has

to be exercised sparingly and the petitioner has not form

any case for interference of this Court invoking the

extraordinary jurisdiction under Article 226 and 227 of

the Constitution of India.

9. Ms. Monali Bhatt, further submits that the

verification of the complaint was noted on oath by the

learned Magistrate, wherein the petitioner has not

alleged of any illegal activity of the respondents under

Money Lending Act. The allegation is of exorbitant

demand of interest and more so no evidence has been

produced in support of illegal Money Lending business.

She further submitted that the petitioner in fact is at fault

since he choose to hide himself at Ajmer and thus, the

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learned Magistrate has rightly disbelieved a case of

kidnapping, so as the learned Judge has heard the

recorded conversation to prima facie come to the

conclusion towards allegation made by the petitioner.

Thus, she submits that the petition should be outrightly

rejected.

10. Having heard Ms. Roopal R.Patel, learned

advocate for the petitioner and Ms. Monali Bhatt, learned

APP, for the respondent State, it appears from the record

that in Criminal Inquiry No.2/2018, the Judicial

Magistrate, First Class, Tankara, has observed that the

complaint was filed against nine persons and the

complainant had submitted that he had taken loan of

Rs.1,00,000/- from respondent no.2 three years ago on

some conditions and interest for the prescribed time

period. The learned J.M.F.C. has recorded the allegations

of the complaint and after verification on oath of the

complainant and verification of the electronic records and

even examining the photographs of the motorcycle for

making a prima facie opinion, observed that, at the stage

of inquiry the electronic record produced by the

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complainant cannot be accepted as evidence, in absence

of fulfillment of conditions prescribed in Section 65B of

the Indian Evidence Act, however observed that for

considering, whether prima facie offence is made or not,

the learned Judge heard the telephonic conversation and

came to the conclusion that respondent no.1 had not

given any threat to the complainant. On listening the

whole conversation, the learned Magistrate came to the

conclusion that the respondent no.1 has demanded money

from the complainant who in turn borrowed time,

complainant has also said that he had paid the entire

money and there is no further dues, the learned J.M.F.C.

came to the conclusion that the fact of taking loan from

respondent no.1 is admitted by the complainant.

10.1 The learned J.M.F.C., has heard the

conversation through the primary evidence produced by

the complainant. In case of Arjun Panditrao Khotkar

Vs. Kailash Kushanrao Gorantyal & Ors., reported in

(2020) SCC 1, it has been held that certificate under

Section 65-B(4) of the Evidence Act is a condition

prescribed by way of electronic record, but such

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certificate under Section 65-B(4) of Evidence Act is

unnecessary, if the original document is produced, thus

there is no illegality or irregularity by the learned Judge

to have heard the conversation recorded in the memory

card. Furthermore, it is the complainant who had

produced the electronic document for perusal of the

Court, in support of his complaint.

10.2 For the offence alleged under Section 365 of

IPC, petitioner himself stated that he was picked up in a

car near Takdir Valkanizing Shop situated at Morbi

Rajkot Road and was taken about two kms. away in a

forest area from Mitana, however taking advantage of the

darkness, had ran away from the place towards the road

and took lift in a truck, as was under fear, he went to

Ajmer Dargah. The learned J.M.F.C. found the fact of

reaching Ajmer Dargah as doubtful and observed that the

complainant has failed to explain why he chose the place

at Ajmer. The order of the learned J.M.F.C., Tankara,

cannot be considered as illegal for not taking cognizance

under Section 365 of the IPC. For the very simple reason

that the complainant himself chose to hide at Ajmer.

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Further the accused could not be shown to have the

intention to secretly or wrongfully confine the

complainant. The learned J.M.F.C. has found the case of

the incident of beating, abusing and scrapping the

motorcycle against the respondent nos.1 to 8 and

therefore, took the cognizance under Sections 323, 427,

504 and 114 IPC.

10.3 The offence under Money Lending Act has not

been prima facie made out before the learned J.M.F.C.,

Tankara, in the affirmation on oath. The complainant

could not corroborate the allegation made in the

complaint of respondents being indulged in illegal activity

of Money Lending without any requisite license under the

Money Lending Act. Though it was alleged that the

respondents have harassed villagers of Pitana village by

recovering ten times the borrowed money, no such

corroborative evidence has been given by the

complainant, nor by his witness. No other witness

aggrieved by money lending activities of accused has

been examined. The learned J.M.F.C. has rightly not

taken cognizance under the Money Lending Act.

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10.4 The allegation is against the present

respondent no.10, who is P.S.I. of Tankara Police Station

under Section 161 and Section 165A of the IPC. It

requires to be noted that the said Section has been

repealed from IPC with effect from 09.09.1988 by the

Prevention of Corruption Act, 1988 (49 of 1988), hence

both the sections do not find place in Chapter-IX of the

IPC, which is in context of offences by or relating to

public servants. Further the learned JMFC has observed

that the copy of the complaint was sent by Registered

Post A.D. to the Police Station. The said act of sending the

complaint by Registered Post A.D. was not appreciated by

the learned JMFC on the ground that in a case of

kidnapping or abduction, ordinary prudent man would

immediately inform the concerned Police Station instead

of sending complaint by RPAD. As stated, the complaint

was sent to the Police Station by RPAD and the learned

Magistrate observed that the said fact made it clear that

the complainant was in contact with his family members

after the incident dated 20.02.2018, which corroborates

with his conversation with present respondent no.10 and

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the uncle of the complainant. The learned Judge has

observed that the family members of the complainant has

not cooperated with the investigating officer when the

investigating officer reached the residence of the

complainant. The learned JMFC found that the

investigating officer has done his duty and has not found

anything done by the investigating officer beyond his

power, thus no offence, as alleged, was found against the

investigating officer.

10.5 Against the order of the learned J.M.F.C., the

petitioner had approached this Court by way of filing

Special Criminal Application No.3184 of 2018, which was

withdrawn on 19.04.2018. The petitioner, thereafter,

approached Sessions Judge, Morbi by preferring Criminal

Revision Application No.19/2018. The learned Sessions

Judge within the scope of Section 397 read with Section

401 Cr.P.C., found no reason to interfere with the order

of the learned J.M.F.C., while satisfying itself the

correctness, legality and propriety of the findings

recorded in the order.

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11. Section 397(3) Cr.P.C. bars a second revision

application by the same party, as inherent powers under

Section 482 Cr.P.C. cannot be utilized for exercising

powers, which are expressly barred by the Code. There is

no inconsistency between Section 482 and section 397(2)

Cr.P.C. and quashing of proceedings under the inherent

jurisdiction, when cause shown, is preserved under

Section 482 Cr.P.C. Ordinarily, when revision has been

barred by Section 397(3) of the Code, a person

accused/complainant cannot be allowed to take recourse

to the revision to the High Court under Section 397(1) or

under inherent powers of the High Court under Section

482 of the Code, since it may amount to circumvention of

the provisions of Section 397(3) or Section 397(2) of the

Code. However, to meet the end of justice or to prevent

abuse of process, the High Court as preserved with

inherent power would be justified to exercise the inherent

power.

11.1 The bar contained under Section 397(3)

Cr.P.C., would only debar a party from invoking the

revisional powers of this Court for second time having

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once availed such remedy before the Sessions Judge.

While hearing revision under Section 397 Cr.P.C., the

High Court does not sit as an appellate Court and will

not appreciate the evidence unless the judgment of the

lower Court suffers from perversity. When the satisfaction

of the Magistrate was based on the materials placed

before him, the satisfaction cannot be said to be

erroneous or perverse and the satisfaction ought not to

be interfered with.

12. The Hon'ble Apex Court in case of Madhu

Limaye Vs. The State of Maharashtra, reported in AIR

1978 S.C. 47, observed that in a case, the impugned

order clearly brings out a situation which is an abuse of

the process of the Court or for the purpose of securing

the ends of justice interference by the High Court is

absolutely necessary, then nothing contained in Section

397(2) can limit or affect the exercise of the inherent

power by the High Court.

12.1 It has been been observed that the inherent

power of the High Court have been followed ordinarily

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and generally, almost invariably, barring a few exceptions

viz;

(i) That the power is not to be restored to if there is a

specific provision in the Code for the redress of the

grievance of the aggrieved party;

(ii) That it should be exercised very sparingly to prevent

abuse of process of any Court or otherwise to secure the

ends of justice;

(iii) That it should not be exercised as against the

express bar of law engrafted in any other provision of the

Code.

12.2 In case of Md. Ataur Rahman Vs.

Nityananda Das And Ors., reported in 1979 Cri.LJ

1498, the Hon'ble Apex Court in para-4 examined the

issue that, when an application in revision by a party

before the Sessions Judge fails, would the same party be

entitled to make an application under Article 227 of the

Constitution challenging the impugned order of the

Magistrate. Observation of the Supreme Court in the

decision of Jagir Singh Vs. Ranbir Singh, has been

enumerated in the decision of Md. Ataur Rahman Vs.

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Nityananda Das And Ors. (supra), which reads as under:

"If the revision application to the High Court could not be maintained under the provisions of the Cr. P.C. could the order of the High Court be sustained under Article 227 of the Constitution, as now suggested by the respondent?.... The power under Article 227 is a discretionary power and it is difficult to attribute to the order of the High Court such a source of power when the High Court itself did not, in terms, purport to exercise any such discretionary power. In the second place the power of judicial superintendence under Article 227 could only be exercised, sparingly, to keep subordinate Courts and Tribunals within the bounds of their authority and not to correct mere errors. Where the statute banned the exercise of revisional powers by the High Court, it would indeed require very exceptional circumstances to warrant interference under Article 227 of the Constitution, since the power of superintendence was not meant to circumvent statutory law. In the third place it was doubtful if the High Court could exercise any power of judicial superintendence on the date of its order as the Constitution 42nd Amendment Act had by then been passed, By the 42nd Act Clause (5) was added in Article 227 of the Constitution and it says, "Nothing in this article shall be construed as giving to a High Court any jurisdiction to question any judgment of any inferior Court which is not otherwise

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subject to appeal or revision". Clause (5) of Article 227 introduced by the 42nd Amendment Act is a verbatim reproduction of Sub-section (2) of Section 224 of the Government of India Act, 1935 which it was held, conferred powers of administrative superintendence only and not the power of judicial superintendence. In the present case the revision application was, however, filed before the passing of the 42nd Amendment Act it was, therefore, urged by the learned Counsel for the respondent that the High Court could exercise the power of superintendence possessed by it before the 42nd Amendment. We have serious doubts. Article 227, before the 42nd Amendment, gave no right to any party. An application invoking the High Court's power of superintendence did not create any vested right in the suitor. There could, therefore, be no question of any vested right being taken away or not being taken away by the amendment. It was just a question whether the High Court possessed the power of superintendence on the date of the High Court's order. There is no dispute that it did not."

12.3 Thus, it was held that the party who files a

revision under Section 397 Cr.P.C., but fails, cannot move

the High Court under Article 227 of the Constitution.

12.4 The Hon'ble Apex Court in case of Sashidhar

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Nail & Ors. Vs. Gadadhar Patel & Ors., reported in

1978 CriLJ 1316, observed that the legislative policy of

not allowing a second revision before the High Court at

the instance of the party who has lost in the first revision,

cannot be relied upon to affect the jurisdiction of the

Court under Article 227 of the Constitution of India. The

reliance has been placed by the Hon'ble Court in case of

Sarwan Singh And Ors. Vs. State of Punjab, reported

in AIR 1976 SC 232, wherein the Hon'ble Apex Court

held as under:

",,, The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice."

13. It is an established fact, if the revision petition

is dismissed by the Sessions Court then such petition

cannot be entertained again by the High Court. The

question of inherent powers of the court, as referred

herein above, was decided by the Hon'ble Apex Court in

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the case of Madhu Limaye vs. State of Maharashtra

(supra), it was held that the bar under Section 397(2) to

entertain the revision application regarding the

interlocutory orders cannot be said to be a bar under 482

Cr.P.C., as Section 482 is independent of Section 397

Cr.P.C., which gives wide ambit of powers to the High