Gujarat High Court
Vishnubhai Manilal Patel vs State Of Gujarat on 4 March, 2024
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 5077 of 2021
With
R/SPECIAL CRIMINAL APPLICATION NO. 5097 of 2021
With
R/SPECIAL CRIMINAL APPLICATION NO. 5079 of 2021
With
R/CRIMINAL REVISION APPLICATION NO. 855 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
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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 ?
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VISHNUBHAI MANILAL PATEL
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR YOGESH LAKHANI WITH MR. MR. RAHUL R DHOLAKIA, MR. JAL
UNWALA WITH MS TEJAL VASHI, MR PRAKASH JANI, SENIOR COUNSEL
WITH MR. SHIVANG JANI for the Applicants
MR IH SYED SR. ADVOCATE WITH MR ANIQ A KADRI(11256) for the
Respondent(s) No. 2
MS CM SHAH APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 04/03/2024
Page 1 of 18
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COMMON ORAL JUDGMENT
1. Since common question of facts and law involved in
the captioned applications and same arise out of the
order dated 19.05.2021, they were heard together and
being disposed of by this common order.
2. Since the applicant Ashaben Patel (SCR.A 5079 of
2021) has died during the pendency of the application,
same does not survive and is accordingly disposed of.
3. The applicants - original accused Nos. 1 and 2 of the
Criminal Enquiry No. 2 of 2021, have preferred these
applications under Article 226 and 227 of the
Constitution of India, read with Section 482 of the
Cr.P.C. thereby, they seek to challenge the legality
and validity of the impugned order dated 19.05.2021
passed by the Court of Judicial Magistrate at Unjha,
District : Mehsana in Criminal Inquiry No. 2 of 2021.
4. The brief facts leading to file the present applications
are that, the second respondent filed a private
complaint under Section 156(3) of the Cr.P.C. for the
offence punishable under Sections 405, 406, 409, 467,
471, 120B of the IPC before the Court of Judicial
Magistrate at Unjha, Dist.: Mehsana and same is
registered as Enquiry Case No. 2 of 2021. After
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hearing the complainant and on perusal of the
documentary evidence, the trial Court transmitted the
said complaint to Gandhinagar CID Crimes Police
Station and directed to register an FIR and investigate
the matter and further directed to submit the report
within 60 days. The accused applicants were holding
the post of Secretary and Chairman of the Agricultural
Produce Market Committee (for short 'APMC') at
Unjha, Dist.: Mehsana, whereas, deceased Ashaben
Patel was arraigned as accused no. 3 as at relevant
time she was Member of Legislative Assembly of
Unjha-21. The second respondent being an employee
of APMC, Unjha in his complaint alleged that, despite
the disclosure of the cognizable offence, the Unjha
police did not register the FIR and therefore, he
constrained to file the complaint for necessary
direction. The allegations made against the applicants
with regard to embezzlement of public money as
according to say of the complainant, the accused by
manipulating the account software, made alteration in
the receipts of usage charges and thereby
misappropriated the huge amount of user charges for
their own benefit and caused the financial loss to the
institution. The trial Court after hearing the
complainant, before taking cognizable of the offence,
vide its order dated 19.05.2021 directed the CID
Crimes Police Station, Gandhinagar to register an FIR
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and investigate the matter for the aforesaid offences,
as contemplated under Section 156(3) of the Cr.P.C.
5. Aggrieved with the said order, the applicants are
before this Court mainly on the ground that, the trial
court by examining the merits of the case, has taken
the cognizance and considering Section 47 of the
APMC Act, without valid sanction, the trial Court
cannot take cognizance of the offence. The second
issue is raised that, the court has travelled beyond its
jurisdiction while entrusting the investigation to the
State CID Crime Branch.
6. This Court has heard learned Senior Counsel Mr.
Yogesh Lakhani, Mr. Jal Unwala and Mr. Prakash Jani,
learned counsel assisted by their respective advocate
on record namely Mr. Rahul Dholakia, Ms. Tejal Vashi,
and Mr. Shivang Jani appearing for and on behalf of
the applicants herein and Senior Advocate Mr. I.H.
Syed, assisted by Mr. Aniq Kadri for the private
respondent and Ms. Chetna Shah, learned APP for the
respondent State.
7. The following contentions have been raised by the
learned counsel appearing for the applicants :
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(a) That the allegations made in the complaint do not
disclose the cognizable offence or made out any
offence and the complaint has been filed with
malafide intention for wreaking the vengeance on the
applicants and with a view to spite him due to private
and personal grudge. In the year 2010-20 i.e. on
08.09.2020, the applicants came to know that the
complainant Saumil Patel had installed a private
camera in his office chamber without permission of
the APMC, Unjha. He was served with show cause
notice for alleged misconduct. The departmental
proceedings being initiated against him, He made
several representations before various authorities
against the applicants in relation to the alleged act of
forgery and misappropriation of the amount. The
competent authority after detailed inquiry did not find
any merits in the complaint and exonerated the
applicants from all the charges. Due to pendency of
the inquiry, the police did not register the FIR. In such
circumstances, to get out from the departmental
proceedings and to build up a pressure, the complaint
before the Court has been filed. The trial Court ought
not to have directed the police to register an offence,
as the aforesaid aspects having not been properly
considered while coming to the conclusion that, the
case is made out.
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(b) Assailing the order, which running into 35 pages, it is
submitted that, the trial Court has misdirected itself
while directing the police to register an offence and
investigate the matter. Referring para-11 and 14 of
the impugned order, it was submitted that, it is the
function of the police to investigate the matter
whether offence is made out or not. Once the court
before taking cognizance of the offence, thought it fit
to pass the order under Section 156(3) of the Code, he
has to apply his mind and examine the truthfulness
and veracity of the allegations made in the complaint.
However, the court cannot discussed in detail his
views on the merits of the case and on that count,
order is not sustainable in law.
(c) That in the complaint relief was not sought to entrust
the investigation to the CID Crimes, Gandhinagar. The
Magistrate can direct investigation under Section
156(3) only to the police station of the area and not to
any other police station or police officer. The
investigation to CID is to be handed over of
specialized crime of sufficient importance and special
important cases as mentioned in the Gujarat Police
Manual. The trial Court in a mechanical manner,
without assigning sufficient reasons and satisfied
himself that case is made out to entrust the
investigation to the State Crime Branch, has passed
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the order which has resulted into miscarriage of
justice and jurisdictional error has been committed by
the Court.
(d) Assailing the impugned order, it was submitted that,
the trial Court has taken the cognizance of the offence
and therefore, in view of the bar under Section 47 of
the APMC Act, without valid sanction, the Court cannot
take the cognizance against the public officer and in
support of said contention, heavy reliance has been
placed in the case of Anilkumar Vs. M.K. Aiyappa
(2013) 10 SC 705, to contend that, no court shall
take cognizance of the offence except with the
previous sanction.
(e) That in the complaint, there is no allegation with
regard to offence of criminal breach of trust by public
servant. Despite of this, the trial Court has held that,
the case is made out against the applicants accused
under Section 409 of the IPC.
8. In short, it was submitted that, the order impugned
travelled beyond the scope and ambit of principles
governing the law regarding application of mind by
the Court at the stage of exercising discretion under
Section 156(3) of the Cr.P.C. and same is not
sustainable in law and suffers from jurisdictional error,
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which has resulted into miscarriage of justice.
9. Mr. I,H., Syed, learned Senior counsel appearing for
and on behalf of respondent complainant has
submitted that, the learned trial Court after
considering the allegations made in the complaint is of
prima-facie view that, the cognizable offence is made
out and therefore, while exercising judicial discretion
the learned trial Court after due application of mind,
has rightly verified truthfulness and veracity of
allegations. The learned trial Court before taking
cognizable of the offence as contemplated under
Section 191(1)(b) of the Code, has passed an order,
investigation under Section 156(3) of the Code and
therefore, when the Magistrate apply his mind not for
the purpose of the proceedings under Section 200 and
others but for some other kind i.e. ordering
investigation under Section 156(3) for the purpose of
investigation, he could not have to take a cognizance
of the offence (R.R. Chari Vs. State of UP, AIR
1951 207). In the facts of the present case, the order
passed under Section 156(3) of the Cr.P.C., for the
purposes of registration of the offence and
investigation and that was passed at the pre-
cognizance stage and therefore, if the Magistrate
takes judicial notice of an offence with a view to
initiate the criminal proceedings in respect of offence,
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then, it can said to have taken cognizance by the
court concerned. Thus, the issue of prior valid sanction
as contemplated under Section 47 of the APMC Act,
can be examined but not at the stage while directing
the police to investigate the matter under Section
156(3) of the Cr.P.C. Lastly, it was submitted that the
State of Gujarat has preferred the Revision Application
against the order impugned, directing the State Crime
Branch Gandhinagar to register an offence. On the
ground that, the Court has no jurisdiction to issue
direction to investigate the matter. Replying on the
case of Pradip Sharma Vs. State of Gujarat,
(SCR.A. No. 895 of 2010 dtd 29.01.2019), it was
contended that in view of the notification issued by
the State of Gujarat, the Court having jurisdiction to
direct the State CID Crimes and in that matter, State
had contended that, the Magistrate is having the
jurisdiction to direct the State CID Police Station,
whereas, in the present case, contrary stand is taken
by the State.
10. In view of the aforesaid contentions, it was submitted
that, the observations made in the order are prima-
facie in nature and confine to the adjudication of the
issues whether cognizable offence is made out or not
and therefore, the well reasoned order does not
require any interference and at the most, order may
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be modified to the extent that, the investigating
agency shall not get influence by the said observation
during the course of the investigation. Thus, therefore,
it was submitted that, the stage of cognizance would
only arise only after the investigation report is
submitted before the magistrate and at the stage of
investigation, court may not exercise its inherent
jurisdiction.
11. The principal issue involved in the present case is with
regard to the scope and parameters for exercise of the
discretionary powers of the Magistrate in dealing with
complaint containing allegations regarding
commission of a cognizable offence.
12. Before examining the rival contentions, I may briefly
refer to some of the relevant provisions, Chapter XIV
of the Cr.P.C. containing Section 190 to 199 deals with
statutory conditions requisite for initiation of criminal
proceedings. Sub-section (1) of Section 190 of the
Code empowers the Magistrate to take cognizable of
an offence in the manner laid therein. It provides that
Magistrate may take cognizable of an offence either
upon receiving complaint of facts which constitute
such offence or upon a police report of such facts, or
upon information received from person other than the
police officer or upon his own knowledge that such
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offence has been committed. Chapter XV containing
Sections 200 to 203, deals with 'complaints to
Magistrates', and lays down the procedure, which is
required to be followed by the Magistrate taking
cognizable of an offence of the complaint.
13. The position is thus clear. Any Judicial Magistrate
before taking cognizable of the offence, may either
inquire into the case himself or direct an inquiry by
any other person or direct an investigation under
Section 156(3) of the Code. If he does so, there is no
need to examine the complainant on oath because, he
is not taking cognizable of the offence therein.
14. The first contention raised is that, the learned trial
Court has travelled beyond the well settled principles
of law while exercising powers under Section 156(3) of
the Code and while passing the order, the Court has
gone into the merits of the case and expressed its
views on merits of the case, which is neither required
or warranted and same would nothing but a process of
taking cognizable of the offence.
15. The scope of Section 156(3) came up for consideration
before the Apex Court in case Maksud Saiyed
[(2008) 5 SCC 668], the Supreme Court examined
the requirement of the application of mind by the
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Magistrate by exercising jurisdiction under Section
156(3) and held that, where jurisdiction is exercised
on a complaint filed in terms of Section 156(3), or
Section 200 of Cr.P.C., the Magistrate is required to
apply his mind and it should be reflected in the order
and what weighted with the Court to order
investigation under Section 156(3) should be reflected
in the order, though detailed expression of view is
neither required nor warranted. In case of Prinka
Srivastava Vs. State of U.P. (2015 (6) SCC 287),
the Apex Court has observed and held that, in an
appropriate case, the learned Magistrate would be
well advised to verify the truth and also can verify the
veracity of the allegations while passing the order
under Section 156(3) of the Cr.P.C. In Kailash
Vijayvijarvia Vs. Rajlaxmi Chaudhary, (2023) SCC
on-line SC 569, after referring the judgment of Anju
Chaudhary Vs. State of U.P. 2013(6) SCC 384, it
was observed that, the Magistrate exercises a very
limited powers under Section 156(3) and so in its
discretion, the court should not travel into the arena of
merits of the case, if such case is fit to proceed
further.
16. Having regard to the facts and circumstances of the
present case and on perusal of the findings recorded
by the trial Court, this Court finds substance in the
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first contention as raised in para-14 of this order.
Para-11 and 14 of the impugned order are relevant to
adjudicate the issue, which read as under:
"Para-11 : Then after the applicant had started
his work and the personal accountant of
Chairman APMC Kanhyalal Patel sat with the
applicant and the entire amount collected
through bogus receipt was taken by him daily.
Therefore, prima facie role of the three
opponents come on record which suggest that
all the three opponents were conspired together
to make false or bogus receipts to
misappropriate the user charges amount for
their own benefit and caused huge loss to the
APMC. The conduct of not repairing the CCTV
Camera of the applicant's chamber also confirm
the fact that they wanted to continue the
conspiracy with embezzlement of APMC money.
As per the allegations sometimes the bogus
receipt money had taken by the nephew of the
Chairman named Kamlesh Patel and sometimes
the bogus receipt money had taken by the
personal servant Fulkesh Patel. Thus the whole
process was carried out in a highly organized
and confidential manner on the basis of extreme
planning. In video footage all the contents of
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complaint can be clearly understand. In videos,
receipt of payment had not been given to any
payment holder but by showing the printout to
the payment holder it was torn. The applicant
has produced the details of the video footage in
written form for understanding from page no.
162 to 233. It is clear from the documents
produced vide Mark 3/1. The application sent for
action to several officials by the applicant
produced from page no. 17 to 23 shows that the
user charges scam is of about 15 to 17 crores
and only 3 percent amount had deposited in the
APMC account and remaining amount had been
handed over to the personal accountant of the
Chairman. Therefore, all these things show the
designed conspiracy to misappropriate the
money coming in the name of user charges in
APMC Unjha.
14. The ingredients of abovementioned sections
applicable in the present complaint in hand. In
the present circumstances, all the opponents
were conspired together. The act of giving
understanding to the applicant regarding the
modus operandi of collection of usage charges
in presence of Chairman Dineshbhai Patel and
MLA Ashaben is the initially part of illegal act
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and all the three were agreed to do illegal act.
They formed the conspiracy to fulfil the desired
results by collecting the usage charges in
aforesaid manner. The Chairman and the
Secretary are custodian of the APMC money
which ultimately government money and public
fund. The opponent no. 1 and 2 both are public
servant as per Section 57 of the Gujarat APMC
Act, 1963 read with Section 21 of IPC. The
charges collected by APMC is under the control
of the Chairman and the Secretary. They were
entrusted with the money and had dominion
over the money. They had dishonestly
misappropriated and converted the money for
their personal use by making false receipts. The
money which must be deposited in APMC
account which had been taken by them and
committed a cognizable offence. "
17. In light of the statutory provisions and legal
pronouncements on the subject and on perusal of the
findings recorded by the trial Court, it is evident that,
the trial Court instead of emphasizing on the need of
investigation by the police, discussed and expressed
its views on the merits of the case, which does not
warranted and call for. It is incumbent upon the trial
Court while exercising jurisdiction under Section
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156(3) to apply its mind and record its reasons why
the matter is required to be investigated by the police
authority. In the entire order, court did not have
considered the aspect of investigation and by
misdirected himself have discussed on the merits of
the case. Thus, therefore, prima-facie, it appears that
judicial discretion by expressing views on merits of the
case, having not been properly exercised by the trial
Court, as for the limited purpose, it is required to be
observed that, for the scientific investigation and
collection of data and considering the position of the
applicants and the stake, the investigation by police is
necessary, which is essential factors to be considered
for directing the police to investigate the matter under
Section 156(3) of the Cr.P.C. which has not been
discussed and observed while passing the order by the
trial Court. The trial Court shall satisfy himself by
arriving brief reasons that investigation through police
agency is needed and inquiry by Court may not be
sufficient.
18. I disagree with the contention of learned Senior
Counsel Mr. Syed that, the observations of the trial
Court is tentative and prima-facie in nature. On close
scrutiny of para-11 and 14 of the order, it is evident
that the trial Court has expressed its views on the
merits of the case, which he suppose to make and/or
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observe while taking cognizance of the offence but not
at pre-cognizance stage. Thus, therefore, the
observations on merits would certainly affect the fair
and impartial investigation and it will not cure by
modification of the order.
19. For the reasons recorded, without entering into the
merits of the other issue like need for prior sanction or
process of taking cognizance etc., the case is made
out to interfere with the impugned order and
accordingly, the order impugned dated 19.05.2021
passed in Criminal Enquiry No. 2 of 2021 is hereby
quashed. Rule is made absolute to aforesaid extent in
each matter. The matter is remitted to the trial Court
to decide the Criminal complaint afresh in accordance
with law on its own merits. The trial Court shall decide
the complaint within two months from the receipt of
this order. It is made it clear that this Court has not
examined the issue of prior sanction, taking
cognizance and jurisdiction of the Court to direct the
CID Crimes Police Station to investigate the matter.
20. The observations made hereinabove are prima-facie in
nature and confine to adjudication of present
applications.
21. In view of the quashing of the order impugned dated
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19.05.2021, whereby the matter has been remanded
to the trial Court to decide the complaint afresh, the
adjudication of present Criminal Revision Application
on merits is not necessary. Accordingly, the Revision
Application is disposed of.
22. Registry is directed to keep copy of this order in each
matter.
(ILESH J. VORA,J)
P.S. JOSHI
