Gujarat High Court

Ajaykumar Bhadoo Ias ... vs State Of Gujarat on 18 August, 2023

Bench: S.V. Pinto

                                                                            NEUTRAL CITATION




     R/CR.MA/8757/2012                         ORDER DATED: 18/08/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 8757 of 2012

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          AJAYKUMAR BHADOO IAS COMMISSIONER & 2 other(s)
                             Versus
                  STATE OF GUJARAT & 1 other(s)
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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
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 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.

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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.

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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,

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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

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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

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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

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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.]"