IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 1470 of 2011 For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 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, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= BHUPESHKUMAR AMBALAL PATEL - Applicant(s) Versus STATE OF GUJARAT & 2 - Respondent(s) =========================================================
Appearance :
MR MA PAREKH for Applicant(s) : 1, MR LB DABHI ADDL.PUBLIC PROSECUTOR for Respondent(s) : 1, MR BS BRAHMBHATT for Respondent(s) : 2, RULE SERVED BY DS for Respondent(s) : 3, =========================================================
CORAM : HONOURABLE MR.JUSTICE M.R. SHAH
Date : 31/01/2012
ORAL JUDGMENT
1.00. Present petition under Article 227 of the Constitution of India read with section 482 of the Code of Criminal Procedure, has been preferred by the petitioner herein – original complainant to quash and set aside the impugned judgement and order dtd.26/4/2011 passed by the learned Sessions Judge, Gandhinagar in Criminal Revision Application No.132 of 2010 as well as impugned order dtd.25/8/2010 passed by the learned trial court in Criminal Inquiry Case No.65 of 2009, by which the learned Magistrate has dismissed the said complaint under section 203 of the Code of Criminal Procedure.
2.00. The petitioner herein had filed a criminal complaint in the court of learned Judicial Magistrate (First Class), Gandhinagar against the respondent Nos.2 and 3 herein for the offences punishable under sections 420, 465, 467, 468, 192, 196, 209 and 114 of Indian Penal Code with respect to one notarised document under which the respondent No.3 claims right, title and interest in the disputed land in question, which is alleged to have been executed by the father of the original complainant. That the said complaint was registered as Criminal Inquiry Case No.65 of 2009 and the learned Judicial Magistrate (First Class), Gandhinagar passed an order under section 202 of the Code of Criminal Procedure and directed the concerned police officer of Dabhoda Police Station to inquire into the matter and submit the report. After completion of the investigation, the investigating officer submitted report before the Judicial Magistrate (First Class), Gandhinagar on 1/1/2010. That thereafter the learned Magistrate has passed order dtd.25/8/2010 dismissing the said complaint under section 203 of the Code of Criminal Procedure observing that the dispute is primarily of a civil nature and the alleged forged document is of the year 1997 and the original alleged forged document is not produced and that the suit is pending between the parties with respect to the very land in question. Being aggrieved by and dissatisfied with the order passed by the learned Judicial Magistrate (First Class), Gandhinagar dtd.25/8/2010 in Criminal Inquiry Case No.65 of 2009 in dismissing the said complaint under section 203 of the Code of Criminal Procedure, petitioner herein – original complainant preferred Criminal Revision Application No.132 of 2010 before the learned Sessions Court, Gandhinagar and the learned Sessions Judge, Gandhinagar by the impugned judgement and order dtd.26/4/2011 has dismissed the said Criminal Revision Application confirming the order passed by the learned Magistrate dismissing the said complaint. Being aggrieved by and dissatisfied with the aforesaid two orders, petitioner herein – original complainant has preferred the present petition under Article 227 of the Constitution of India read with section 482 of the Code of Criminal Procedure.
3.00. Mr.M.A. Parekh, learned advocate appearing on behalf of the petitioner - original complainant has submitted that the learned Magistrate has materially erred in dismissing the complaint solely and mainly on the ground that the dispute is of a civil nature and civil suit is pending between the parties. It is further submitted that even the investigating officer in his report has specifically submitted that a prima facie case is made out against the accused and the seal of notary on the forged notarised document was fake and bogus and therefore, prima facie case is made out for forgery against the accused, still the learned Magistrate has dismissed the said complaint. It is further submitted that as such, as per the settled proposition of law laid down by the the Hon'ble Supreme Court as well as this Court, solely on the ground that civil suit is pending, complaint is not required to be quashed and set aside. It is further submitted that even as held by the Hon'ble Supreme Court in catena of decisions even if the dispute seems to be of a civil nature, still there might be criminal offence. Therefore, relying upon the decision of the Hon'ble Supreme Court in the case of Mohammed Ibrahim and Others Vs. State of Bihar and Another, reported in 2010 (1) GLH 184 it is requested to allow the present petition by quashing and setting the impugned orders and remand the matter to the learned Magistrate for considering the complaint afresh in accordance with law and on merits.
4.00. Mr.Brahmbhatt learned advocate appearing on behalf of the respondent Nos.2 and 3 – original accused has stated at the bar that he does not invite any reasoned order while quashing and setting aside the impugned orders and remanding the matter to the learned Magistrate, as any observation made at this stage may affect the trial and/or the case of the original accused – respondent Nos.2 and 3 herein.
5.00. In view of the above statement made by Mr.Brahmbhatt, learned advocate appearing on behalf of the respondent Nos.2 and 3 herein – original accused, this Court is not assigning further reasons while quashing and setting aside the impugned orders and remanding the matter to the learned Magistrate, and directing the learned Magistrate to consider the complaint afresh in accordance with law and on merits and considering the report submitted by the investigating officer, however, suffice it to say that the learned Magistrate was not justified in dismissing the complaint under section 203 of the Code of Criminal Procedure, more particularly considering the report submitted by the investigating officer.
6.00. In view of the above and for the reasons stated above, present petition succeeds. The impugned order dtd.25/8/2010 passed by the learned Judicial Magistrate (First Class), Gandhinagar in Criminal Inquiry Case No.65 of 2009 as well as impugned judgement and order dtd.26/4/2011 passed by the learned Sessions Judge, Gandhinagar in Criminal Revision Application No.132 of 2010, are hereby quashed and set aside and matter is remanded to the learned Judicial Magistrate (First Class), Gandhinagar for considering the said complaint being Criminal Inquiry Case No.65 of 2009 afresh in accordance with law and on merits and considering the report submitted by the investigating officer, submitted pursuant to the order passed by the learned Judicial Magistrate (First Class), Gandhinagar directing to hold inquiry under section 202 of the Code of Criminal Procedure. The aforesaid exercise shall be completed by the learned Judicial Magistrate (First Class), Gandhinagar at the earliest but not later than THREE MONTHS from the date of receipt of writ of this judgement and order. Rule is made absolute accordingly.
Direct Service is permitted.
[M.R. SHAH, J.] rafik