Bhavesh Narottambhai Joisher vs State Of Gujarat
2021 Latest Caselaw 4357 Guj

       R/SCR.A/7381/2020                                     ORDER




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

    R/SPECIAL CRIMINAL APPLICATION NO. 7381 of 2020

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                   BHAVESH NAROTTAMBHAI JOISHER
                               Versus
                         STATE OF GUJARAT
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Appearance:
KURVEN K DESAI(7786) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MS.NISHA THAKORE, ADDL. PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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 CORAM: HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                           Date : 18/03/2021

                            ORAL ORDER

1. Heard learned advocate Mr.Kurven Desai for the applicant and learned APP Ms.Nisha Thakore for the respondent - State.

2. By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the impugned order dated 26.08.2020 passed below Exh.1 in Criminal Inquiry No.437 of 2019 and further prayed to direct the respondent police authorities to register FIR against the accused persons in pursuance to complaint filed by the petitioner under Sections 153 of the Code of Criminal Procedure.

3. It is the case of the petitioner that he has filed a complaint to District Superintendent of Police under Sections 154 (3) of the Code of Criminal Procedure because the police officers were not registering the FIR. Considering the seriousness of the facts and alleged offences in complaint, Jamnagar D.S.P. has instructed local

R/SCR.A/7381/2020 ORDER

Crime Branch, Jamnagar police officers to investigate the same.

4. Petitioner filed petition being Special Criminal Application No.3625 of 2019 before this Court with the following reliefs:-

"21(A). Your Lordships be pleased to issue appropriate writ, order or direction, directing the respondent police authorities to forthwith register the FIR against the accused persons in pursuance to grievance and incident as narrated by petitioner in written complaints dtd. 05.11.2018 (Annexure - "A") and take all requisite steps against accused persons in accordance with law and looking to the peculiar facts and circumstances of the case, the petitioner further prays this Hon'ble Court to direct respondent no.2 to monitor and supervise the investigation of FIR after it is registered so as to ensure fair and impartial investigation, in the interest of justice and equity.

(B). Your Lordships be pleased to direct the respondent authorities to register FIR and produce Action Taken Report before this Hon'ble Court, in pursuance to grievance and incident as narrated by petitioner in written complaint of petitioner dtd. 05.11.2018, pending the admission, hearing and final disposal of this petition.

The said petition was disposed of by order dated 24.04.2019 with a following direction:-

"From the overall consideration of the entire material, this Court is of the opinion that it would be in the fitness of things to direct the petitioner to approach the concerned Court for lodgment of the FIR under Section 200 of the Code of Criminal Procedure. The Concerned Court shall follow the due procedure of law and shall decide the matter in accordance with law without construing this to be the direction to lodge the complaint. The material as may be placed before it shall be being influenced by any earlier event of any observations made by this Court. "

5. Being aggrieved and dissatisfied with the order dated 24.04.2019 passed in Special Criminal Application No.3625 of 2019, the petitioner has approached the Hon'ble Apex Court by filing the Special Leave to Appeal (Cri.)No.6434 of 2019, wherein the Hon'ble Apex Court has passed the following order:

"We are not inclined to interfere with the impugned order. The special leave petition is accordingly dismissed.

However, we make it clear that the option will be available to the

R/SCR.A/7381/2020 ORDER

petitioner to move under Section 200 of the Code of Criminal Procedure or any other provisions as deemed appropriate before the Court below.

Pending application stand disposed of."

6. In terms of above order, the petitioner approached the learned Magistrate by filing an application under Section 190 of the Code of Criminal Procedure, 1973 seeking investigation under Section 156 (3) of the Code direction against the respondent police authorities to register the FIR against the accused persons for commission of offence under Sections 120(B), 467, 468, 471, 420, 498, 211, 500, 384, 363, 366 of Indian Penal Code and Cyber Crime Act.

7. After considering the submissions made by the applicant and principles established in the case of 'Lalitakumari' , learned Magistrate has passed the following order:-

"(5) Considering the principles established in the Judgment of 'Lalitakumari', when the information discloses the commission of cognizable offence, the preliminary inquiry need not be conducted and the F.I.R. must be registered compulsorily. And when the information received does not disclose a cognizable offence, a preliminary inquiry may be conducted to ascertain whether cognizable offence is disclosed or not. Moreover, Hon'ble Supreme Court has clearly directed in the said judgment that, the preliminary inquiry may be conducted in the cases of (1) Family dispute, (2) Commercial Offence, (3) Medical negligence (4) Corruption cases and the cases where there is delay of more than 3 months, and thereafter the further inquiry should be conducted as to whether the cognizable offence is revealed or not.

Thus, the Constitutional bench of Hon'ble Supreme Court has clearly held in this judgment that, the preliminary inquiry is necessary to be conducted in the cases of family disputes. Hence, considering the principles established in this judgment, it appears that, the complainant of the present case has made allegations against the different family members regarding family disputes. And the complainant first came to know about the incident in 2015 and after three years in 2018, the complainant gave complaint in S.P.Office. Under such circumstances, it prima-facie appears that, the delay was caused in filing the complaint. Further, the commission of cognizable offence against the accused persons can not be ascertained prima-facie on the basis of the facts of the complaint of the complainant. Under such circumstances, it appears necessary to collect further evidences after

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conducting preliminary inquiry. Further, my predecessor Magistrate has clearly ordered below Exhibit-4, Exhibit-5 and Exhibit-6 to put this complaint for verification under section-200 of Criminal Procedure Code.

Thus, my predecessor Judge has passed an order to conduct preliminary inquiry in this case. Under such circumstances, I do not find it just and proper to send this complaint for police investigation under section-165(3) of Criminal Procedure Code.

8. Having heard the learned advocates for the both the sides. There is no infirmity findings arrived at by the Learned Magistrate, since the order is passed after considering the facts of the matter and applying ratio laid down in the case of Laltikumari V/s. Govt. of U.P. & Ors. reported in 2014 2 SCC 1. In view of the fact that learned Judge has after collecting the evidences and conducting the preliminary inquiry exercised its discretion. Even otherwise the learned Magistrate is seized with the proceedings of the complaint and it will be interest of the parties that the proceedings be conducted by the magistrate in accordance with law.

9. This Court is of the view that no interference required in the impugned order dated 26.08.2020 passed by the learned Magistrate. This Court is, therefore, not inclined to exercise its jurisdiction under Articles 226 and 227 of the Constitution of India. The petition is, therefore, not entertained and the same is rejected. No order as to cost.

(VAIBHAVI D. NANAVATI,J) VARSHA DESAI