Gujarat High Court

Samirbhai Jayendrabhai Mehta vs State Of Gujarat on 11 October, 2023

Bench: Sandeep N. Bhatt

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 4836 of 2014

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                          SAMIRBHAI JAYENDRABHAI MEHTA
                                      Versus
                           STATE OF GUJARAT & 1 other(s)
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Appearance:
MR HARDIK H DAVE(6295) for the Applicant(s) No. 1
MR JS YADAV(1003) for the Respondent(s) No. 2
MR. CHINTAN DAVE, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                     Date : 05/10/2023
                                      ORAL ORDER

Rule returnable forthwith. Learned APP waives service of

notice of Rule on behalf of respondent No.1 - State.

1. The present petition is filed by the petitioner -

accused seeking the following main reliefs:

i) issue a Writ of Certiorari or any other appropriate writ, order to quash and set aside the order passed by Ld. Chief Judicial Magistrate, Navsari vide Exh.8 in Criminal Case No.2657/2012, dated 14/06/2013 and further order passed by Ld. Principal Sessions Judge, Navsari in Criminal Revision Application No.37/2013, dated 30/09/2014 confirming the order passed by the Ld. CJM, Navsari and also

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Criminal Case No.2657/2012 alongwith FIR registered vide II- CR.No.26/2012 before the Navsari Town Police Station and chargesheet filed under the same;

ii) pending admission and/or final disposal of this petition, appropriate direction be issued to Respondents that the further proceedings of Criminal Case No.2657/2012 alongwith FIR registered vide II- CR.No.26/2012 before the Navsari Town Police Station and chargesheet filed under the same, be stayed;"

2. Brief facts as per the case of the petitioner in this

petition are as such that on 29.02.2012, when the

complainant arrived at his residence, he received a phone

call instructing him to check his letterbox. Inside the

letterbox, the complainant found a letter addressed to him. The letter contained a threat, indicating that a

watchful eye had been on the complainant's house for

three months, and unless a sum of Rs.1 lakh was paid,

the complainant's wife would be subjected to rape and

murder. Disturbed by this, the complainant discussed the

matter with his neighbors. Fortunately, the complainant

possessed a caller ID at his residence, allowing him to

identify the mobile number from which the threatening

call had originated. Upon investigation, it was determined

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that the mobile number belonged to the airtel company.

It is further the case of the petitioner in this

petitioner that another threatening call was received,

prompting him to submit a written complaint to the

police commissioner, along with the mobile number and

the letter found in the letterbox. Subsequently, the

Investigating Agency conducted an investigation into the

offense and filed a charge-sheet against the present

petitioner under Section 507 of the Indian Penal Code.

The petitioner, in response, filed an application

marked as Exh.8 in the aforementioned criminal case.

This application challenged the fact that Section 507 of the IPC constitutes a non-cognizable offense, and

therefore, the investigating agency lacked the authority to

investigate the offense without prior permission from the

concerned Learned Magistrate, as stipulated under

Section 155 (2) of the Criminal Procedure Code (Cr.P.C.).

However, the Learned Magistrate rejected the

application. The petitioner subsequently contested this

decision by filing Criminal Revision Application No. 37 of

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2013 before the Principal Sessions Judge, Navsari, but

this, too, was dismissed by the Learned Principal

Sessions Judge, Navsari. Consequently, the present

petition is preferred.

3. Heard the learned counsel, Mr. Hardik H. Dave for

the petitioner, Mr. J.S. Yadav, the learned counsel for

the respondent No.2 - complainant and Mr. Chintan

Dave, the Additional Public Prosecutor (APP), for the

respondent No.1 - State of Gujarat.

4.1 The learned counsel, Mr. Hardik H. Dave for the

petitioner has drawn my attention to the order passed

by the learned Chief Judicial Magistrate, Navsari below Exh.8 in Criminal Case No.2657 of 2012, dated

14.06.2013 and further order passed by Ld. Principal

Sessions Judge, Navsari in Criminal Revision Application

No.37 of 2013, dated 30.09.2014 confirming the order

passed by the learned C.J.M., Navsari and also Criminal

Case No.2657/2012 along with FIR registered vide II-

CR.No.26/2012 before the Navsari Town Police Station,

and has submitted that as per the complaint field before

the learned Magistrate, the case of the petitioner is that

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on 29.2.2012, when the complainant reached his

residence, at that time, a phone call was received

wherein the caller told the complainant to check his

letter box. In the letter box, there was a letter

addressed to the complainant stating that since three

months watch has been catch on the house of the

complainant and if Rs.1 lakh is not paid then the wife

of the complainant would be raped and murdered. The

complainant discussed his issues with his neighbours and

since the complainant had a caller ID at his place, the

complainant came to know about the mobile number

from which the call was received and thereafter the

complainant checked and came to know that the mobile

number is of Airtel company. Furthermore, he has submitted that the a written complaint was given to

Police Commissioner along with the mobile number and

the letter received in the letter box. After the filing of

that FIR, Investigating Agency investigated the offence

and subsequently filed charge sheet against the present

petitioner for the offence punishable under Section 507 of

IPC, which is non-cognizable offence. Furthermore, he has

submitted that the Investigating Agency could not have

investigated the above offence without prior permission of

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the concerned learned Magistrate as envisaged under

Section 155 (2) of Cr.P.C. The Ld. Magistrate has

rejected the above application and therefore present

petitioner challenging the said order by preferring

Criminal Revision Application No.37/2013 before Principal

Sessions Judge, Navsari and the same was also rejected

by the Ld. Principal Sessions Judge, Navsari. Therefore,

he has submitted that both the Courts have committed

gross error of law by not appreciating the facts available

on the record, more particularly, the learned Chief

Judicial Magistrate has rejected the application at Exh.8

on the erroneous ground that application itself is

premature and the said ground is erroneous as

Investigating Agency has already investigated the case without prior permission of the learned Magistrate.

Therefore, the application is perfectly filed at the right

time.

4.2 Furthermore, he has submitted that the statutory

safeguard, given under Section 155(2) of the Criminal

Procedure Code, must be strictly followed, as they are

conceived in public interest and serve as a guarantee

against frivolous and vexatious investigations.

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Additionally, he has relied upon Section 507 of the

Indian Penal Code and Section 155 of the Criminal

Procedure Code, emphasizing that Section 507 is a non-

cognizable and bailable offence, thus invoking the

applicability of Section 155. Consequently, he has argued

that both the Courts have committed a gross error of

law and, therefore, he has prayed that the present

petition be allowed, and the impugned orders passed by

the courts below be quashed. In support of his argument,

he has cited the judgment of the Hon'ble Apex Court in

the case of Keshav Lal Thakur versus State of Bihar

reported in (1996) 11 SCC 557.

5.1 Per contra, Mr. J.S. Yadav, the learned counsel for the respondent No.2 - complainant, has submitted that

prima facie, both the courts below have concurrently found on unequivocal terms that the question is

premature, i.e., the application of the petitioner, and

there has been a commission of the cognizable offence in

question as established now on the basis of material.

Therefore, Section 155(2) of the Criminal Procedure Code

does not apply in this case.

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5.2 He has submitted that both the courts below have

concurrently found that the cognizable offences have been

committed under Section 506(2) of the Indian Penal Code

and well as Section 67 of the Information Technology

Act, which have been required to be tried before the

Competent Court. Therefore, it cannot be said that the

F.I.R. was for the offence under Section 507.

Furthermore, he has submitted that now the charge-sheet

has already been filed; therefore, there is no question of

quashing any complaint. Moreover, he has submitted that

the present Special Criminal Application is barred under

Section 297(3) of the Criminal Procedure Code as being a

second revision and hence, it is not maintainable.

Furthermore, he has submitted that there is neither a jurisdictional error in the judgments and order nor is

there any error on the face of the record, which has

caused any prejudice to the petitioner. Furthermore, he

has submitted that the acts of the Investigating Officer,

which have concluded that the commission of only an

offence under Section 507 is ex-facie erroneous and

unthoughtful, and the same suffer from non-application of

mind. Furthermore, he has submitted that on a bare

reading of the material available on record, prima facie,

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the other offences have also been committed by the

petitioner, including the offences under Sections 506(2) of

the I.P.C. and offences under Sections 383 and 384 of

the I.P.C. as those are the cognizable offences. Therefore,

the present petitioner is required to be rejected.

6. Mr. Chintan Dave, the Additional Public Prosecutor

(APP), for the respondent No.1 - State of Gujarat has

submitted that essentially the dispute is between the two

private parties, the Court may pass appropriate order

after considering the rival submissions and considering

the provisions of law in appropriate manner.

7.1 I have considered the rival submissions made at the bar.

7.2.1 It is fruitful to refer Section 507 of the Indian

Penal Code, as under:

"Section 507 in The Indian Penal Code:

507. Criminal intimidation by an anonymous communication.--Whoever commits the offence of criminal intimidation by an anonymous communication, or having taken precaution to conceal the name or

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abode of the person from whom the threat comes, shall be punished with imprisonment of either description for a term which may extend to two years, in addition to the punishment provided for the offence by the last preceding section."

7.2.2 It is fruitful to refer Section 155(2) of the

Criminal Procedure Code, as under:

"Section 155(2) in The Code Of Criminal Procedure, 1973:-

155. (2) No police officer shall investigate a non- cognizable case without the order of a Magistrate having power to try such case or commit the case for trial."

7.2.3 It is fruitful to refer Section 397 of the

Criminal Procedure Code, as under:

"Section 397 in The Code Of Criminal Procedure, 1973:-

397. Calling for records to exercise powers of revision. (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or

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himself as to the correctness, legality or propriety of any finding, sentence or order,- recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation.- All Magistrates whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub- section and of section 398. (2) The powers of revision conferred by sub- section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."

7.3 Considering the rival submissions made at the bar,

the moot question is that both the courts below have

found that case is made out under Section 506(2) of the

Indian Penal Code. However, the basis for these findings

is not evident from the record. In contrast, the trial

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court, while relying on a book written by Mr. Upendra

N. Jani on the Indian Penal Code, has suggested that

Sections 504 and 506(2) of the I.P.C. also encompass

Section 507. Furthermore, it has referred to some

references in the book discussing Section 155(2) of the

Criminal Procedure Code made by another author. The

observation made by the author in the Black Book is

cited to support the argument that " when the police has

investigated without the prior permission of the Magistrate in the case of non-cognizable offence, such cannot be considered as void as no prejudice is caused to the accused person". I am of the opinion that this finding of the court below is totally erroneous, perverse

and without any basis.

7.4 On the contrary, upon a bare reading of the charge-

sheet filed by the Investigating Officer in the

proceedings, it's clear that only Section 507 is applied to

the facts of the case. The Court cannot speculate or

presume beyond what is explicitly provided in the

charge-sheet at the commencement of the trial. It is

worth noting that Section 507 of the I.P.C. prescribes a

maximum imprisonment of two years, which categorizes

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the offense as non-cognizable and bailable. The findings

by the courts below that Section 506(2) and 504 is also

required to be considered in the present case, this

finding, in my opinion, is baseless and can be considered

as "ipsi-dixit". The Court cannot presume, on its own,

the applicability of an offense in the absence of any

specific averment made in the investigation papers

regarding such applicability.

7.5 Considering the judgment, which is relied on by the

learned advocate for the petitioner of the judgment of

the Hon'ble Apex Court in the case of Keshav Lal

Thakur (supra), and more particularly, particulars 2 and

3, as under:

"2. On a report lodged by Jnanerdra Parchchya, Anu Mandal Padadhikari, Gooda, a case under Section 31 of the Representation of Peoples Act, 1950 ('Act' for short) was registered against Keshav Lal Thakur, the appellant herein, by Thakur Gangti Police Station and on completion of investigation a report in final form was submitted praying for his discharge on the ground that the offence was a non- cognizable one. On that report the Chief Judicial Magistrate, Godda, took cognizance as in his view, a prima facies case was

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made out against the appellant; and aggrieved thereby he moved a petition under Section 482 Dr. P.C. before the Patna High Court wherein he contended, inter alia, that the cognizance was barred by limitation under Section 468 Dr. P.C. A learned Judge of the High Court, who entertained the petition, ultimately dismissed the same being of the view that under Section 473 Dr. P.C. cognizance could be taken beyond the period of limitation. The above order of the High Court is under challenge us in this appeal.

3. We need not go into the question whether in the facts of the instant case the above view of the High Court is proper or not for the impugned proceeding has got to be quashed as neither the police was entitled to investigate into the offence in question nor the Chief Judicial Magistrate to take cognizance upon the report submitted on completion of such investigation. On the own showing of the police, the offence under Section 31 of the Act is non cognizable and therefore the police could not have registered a case for such an offence under Section 154 Dr. P.C. of course, the police is entitled to investigate into a non- cognizable offence pursuant to an order of a competent Magistrate under Section 155 (2) Dr. P.C. but, admittedly, no such order was passed in the instant case. That necessarily means, that neither the police

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could investigate into the offence in question nor submit a report on which the question of taking cognizance could have arisen. While on this point, it may be mentioned that in view of the proviso to Section 2 (d) Dr. P.C., which defines 'complaint', the police is entitled to submit, after investigation, a report a relating to a non-cognizable offence in which case such a report is to be treated as a 'complaint' of the police officer concerned, but that explanation will not be available to the prosecution here as that related to a case where the police initiates investigation into a cognizable offence - unlike the present one - but ultimately finds that only a non- cognizable offence has been made out."

7.6 Considering the settled position of the law and taking into account Section 155(2) of the Cr.P.C. as

mentioned above, it is clear that the police cannot

investigate the case without prior permission from the

Magistrate. In the present case, there is no prior

permission on the record of the case. Therefore, the

submission that prior permission was obtained for the

investigation by the Police Authority is required to be

negated.

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7.7 Considering whether the present petition proceeding

under Section 482 of the Criminal Procedure Code or

Section 226/227 of the Constitution is maintainable or

not, it is pertinent to refer to the judgment of the

Hon'ble Apex Court in the case of Bakulabai and

Another versus Gangaram and Another reported in (1988)

1 SCC 537, specifically paragraph 4, which is relevant,

as under:

"4. On the maintainability of the revision application before it, the High Court took an erroneous view. The provisions of sub-section (3) of s. 397 relied upon, are in the following terms:

"(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."

The main judgment of the Judicial Magistrate upholding the appellants' claim for maintenance was in her favour and there was no question of her challenging the same. Her challenge before the Sessions Judge was confined to the part of the order assessing the amount of maintenance, and this issue

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could not have been raised again by her. Subject to this limitation she was, certainly entitled to invoke the revisional jurisdiction of the High Court. The decision on the merits of her claim went against her for the first time before the Sessions Judge, and this was the subject matter of her revision before the High Court. She could not, therefore, be said to be making a second attempt when she challenged this order before the High Court. The fact that she had moved before the Sessions Judge against the quantum of maintenance could not be used against her in respect of her right of revision against the Sessions Judge's order. Accordingly, the decision of the High Court on this question is set aside and it is held that the revision petition of the appellant before the High Court, except the prayer for enhancing the amount was maintainable."

7.8 Considering the totality of the facts and

circumstances of the case and aspects of the matter, this

is a fit case where the Court should exercise the powers

under Section 482 of the Criminal Procedure Code, as

both the courts below have committed error in passed

the impugned orders, which are required to be interfered

with as such orders are found illegal, erroneous and

against the material available on the record. Therefore,

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the present petitioner is required to be allowed.